[Details, link to cert petition]

Question presented in the petition for certiorari:

In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.

The questions presented are:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

A responsive filing from the plaintiffs is due September 24, 2010.

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*** Cases Decided ***

Disparate Impact: Use of an earlier unlawful employment practice states a disparate claim.
Lewis v. City of Chicago (05/24/2010)
http://www.lawmemo.com/supreme/case/Lewis/

Firefighters claimed that a written test had a disparate impact on black applicants and was not a valid test of firefighting aptitude. They filed an EEOC charge more than 400 days after they were notified, but within 300 days of the City's beginning to hire applicants. Held: A plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim.

Privacy: Search of police pager text messages was reasonable, so no 4th amendment violation.
City of Ontario v. Quon (06/17/2010)
http://www.lawmemo.com/supreme/case/Quon/

The City acquired transcripts from the provider of City-issued pagers and discovered that Quon had used the pager for personal purposes and that some text messages were sexually explicit. Held: The search of Quon's text messages was reasonable and did not violate the 4th amendment because the search was motivated by a legitimate work-related purpose and it was not excessive in scope.

ERISA: Plan administrator's interpretation is entitled to deference even after reversal for violating ERISA (5-3).
Conkright v. Frommert (04/21/2010)
http://www.lawmemo.com/supreme/case/Conkright/

After a Court of Appeals found that an ERISA Plan had violated ERISA in several respects and remanded for fashioning a remedy, the district court declined to apply a deferential standard to the Plan administrator's proposed a new interpretation, and adopted instead an approach proposed by the employees. Held: The district court should have applied a deferential standard of review to the Plan administrator's new interpretation of the Plan on remand.

ERISA: Claimant can get attorney fees if there is "some degree of success on the merits."
Hardt v. Reliance Standard Life Ins Co (05/24/2010)
http://www.lawmemo.com/supreme/case/Hardt/

When Hardt sued for denial of disability benefits, the trial court remanded to the carrier, who then granted benefits; the trial court awarded attorney fees. Held: A court may award fees and costs under §1132(g)(1), as long as the fee claimant has achieved "some degree of success on the merits."

Arbitration: Imposing class arbitration on parties who have not agreed to it violates Federal Arbitration Act (5-3).
Stolt-Nielsen v. AnimalFeeds Intl Corp (04/27/2010)
http://www.lawmemo.com/supreme/case/Stolt-Nielsen/

An international maritime contract contained an arbitration clause that was silent as to whether arbitration is permissible on behalf of a class. Held: Imposing class arbitration on parties who have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act.

Arbitration: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4).
Rent-A-Center West v. Jackson (06/21/2010)
http://www.lawmemo.com/supreme/case/Jackson/

The employee argued that an arbitration agreement was unconscionable, and that the issue of unconscionability must be decided by a court rather than an arbitrator. Held: The issue of unconscionability is for the arbitrator to decide. Under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.

Arbitration: Court, not arbitrator, decides CBA's ratification date.
Granite Rock Company v. Teamsters (06/21/2010)
http://www.lawmemo.com/supreme/case/Granite/

The employer and union disagreed as to the ratification date of a new collective bargaining agreement. The agreement contained an arbitration clause. Held: The ratification date dispute must be decided by the court, not an arbitrator.

Arbitration: Pre-arbitration conference is not a jurisdictional prerequisite to National Railway Adjustment Board arbitration.
Union Pacific RR v. Brotherhood of Locomotive Engineers (12/08/2009)
http://www.lawmemo.com/supreme/case/UnionPacific/

Held: The statutory requirement of a pre-arbitration conference was not a jurisdictional prerequisite to National Railway Adjustment Board arbitration.

NLRB: NLRB cannot act when only two of its five positions are filled (5-4).
New Process Steel v. NLRB (06/17/2010)
http://www.lawmemo.com/supreme/case/newprocess/

The NLRB decided an unfair labor practice case at a time when it had only two Members. Held: NLRA Section 3(b) requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the NLRB.

NLRA §301: New cause of action for tortious interference rejected.
Granite Rock Company v. Teamsters (06/21/2010)
http://www.lawmemo.com/supreme/case/Granite/

The employer claimed that an international union tortiously interfered with a local collective bargaining agreement by supporting a strike in violation of that agreement. Held: The Court refused to recognize a new federal common-law cause of action under LMRA Section 301 for the international union's alleged tortious interference with the CBA.

False Claims Act: Qui tam suit is barred by prior disclosure in county and state reports (7-2).
Graham County Soil & Water v. US ex rel Wilson (03/30/2010)
http://www.lawmemo.com/supreme/case/GrahamCounty/

The False Claims Act bars a qui tam suit if there has been a prior public disclosure of information in an “administrative ... report ... audit, or investigation.” Held: The reference to "administrative" reports, audits, and investigations encompasses disclosures made in state and local sources as well as federal sources.

*** Certiorari Granted ***

Retaliation: Is oral complaint protected conduct under FLSA's anti-retaliation provision?
Kasten v. Saint-Gobain Performance
http://www.lawmemo.com/supreme/case/Kasten/

Issue: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

Retaliation: Does Title VII create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity?
Thompson v. North American Stainless
http://www.lawmemo.com/supreme/case/Thompson/

Issue: Whether Title VII Section 704(a) forbids an employer from retaliating for filing an EEOC charge by inflicting reprisals on a third party (here, a fiancé), closely associated with the employee who filed the charge.

Cat's Paw: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?
Staub v. Proctor Hospital
http://www.lawmemo.com/supreme/case/Staub/

Issue: In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?

Privacy: Did NASA's background investigations violate federal contract employee's constitutional right to informational privacy?
NASA v. Nelson
http://www.lawmemo.com/supreme/case/nasa/

Issue: Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, or asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, and the information is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

Arbitration: Does Federal Arbitration Act preempt state unconscionability law?
AT&T Mobility v. Concepcion
http://www.lawmemo.com/supreme/case/Concepcion/

Issue: Whether the Federal Arbitration Act preempts States from conditioning the enforcement of an arbitration agreement on the availability of particular procedures - here, class-wide arbitration - when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.

Tax: Can IRS categorically exclude medical residents from the student exemption from Social Security tax?
Mayo Foundation v. United States
http://www.lawmemo.com/supreme/case/Mayo/

Issue: Whether IRS can categorically exclude medical residents from the student exemption from Social Security tax.

Immigration: Preemption of Arizona statute that imposes sanctions on employers who hire unauthorized aliens.
Chamber of Commerce v. Candelaria
http://www.lawmemo.com/supreme/case/Candelaria/

Issue: Whether provisions of Arizona's Legal Arizona Workers Act are preempted: imposing sanctions on employers who hire unauthorized aliens, and requiring all employers to participate in a federal electronic employment verification system (E-Verify).

ERISA: ERISA claim for inconsistency between SPD and the actual Plan.
CIGNA Corporation v. Amara
http://www.lawmemo.com/supreme/case/Amara/

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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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.gov
www.nlrb.gov

NLRB outlines plans for considering 2-member cases in wake of Supreme Court ruling

In response to numerous inquiries, the National Labor Relations Board today outlined its plans for handling returned cases following the Supreme Court’s recent decision in New Process Steel v. NLRB that the Board was not authorized to decide cases when three of its five seats were vacant.

During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members.

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.

For the first time since December 2007, the Board is now at full strength with the addition of Member Brian Hayes, who was sworn in late yesterday. Last week, the Senate confirmed Mr. Hayes and Board Member Mark Pearce. Member Pearce was originally given a recess appointment to the Board by President Obama in March, along with Board Member Craig Becker.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

###

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[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 

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[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.

Facts: Eric Thompson claimed he was fired because his fiancée filed an EEOC charge. From February 1997 through March 2003, Thompson, worked as a metallurgical engineer for North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the employer in 2000, and the couple began dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, North American Stainless terminated Thompson’s employment.

Thompson alleged that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff’s termination.

Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity.

Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 SCt 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity.

The three DISSENTS by six judges argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under 42 USC Section 2000e-5(b).

Questions presented:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

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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. The 9th Circuit held that the Arizona Act is neither expressly nor impliedly preempted by federal law, and does not violate due process.

The US Supreme Court granted certiorari to review the following issues:

1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).

2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.

3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

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After CIGNA converted its traditional defined benefit pension plan to a cash balance plan, it issued a summary plan description (SPD) to plan participants. Amara brought a class action claiming that CIGNA failed to comply with ERISA's notice requirements and SPD provisions. The trial court held for Amara; the 2nd Circuit affirmed. The finding was that the SPD misrepresented the terms of the plan itself.

Although CIGNA argued that the plaintiffs failed to show injury, the trial court found that it was enough that the participants had shown "likely harm" and that CIGNA had failed to establish harmless error. The US Supreme Court granted certiorari to review the 2nd Circuit judgment.

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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. The employer and the local union had reached a tentative new CBA which contained a broad arbitration clause and a no-strike clause. The employer alleged that the local union had ratified the CBA and then engaged in a strike which was in part led by a high official of the international union. The union claimed that the new CBA had not yet been ratified, so there could be no breach of the no-strike clause.

(1) The issue on the contract claim was whether the ratification date dispute should be decided by an arbitrator or by the district court. The US Supreme Court (7-2) held that the ratification date dispute must be decided by the court. It is typically for a court rather than an arbitrator to decide whether parties have agreed to arbitrate a particular dispute. Here, the district court must decide (a) when the CBA was formed and (b) whether the CBA's arbitration clause covers the dispute the local union wishes to arbitrate.

(2) The Supreme Court unanimously refused to recognize a new federal common-law cause of action under LMRA Section 301 for the international union's alleged tortious interference with the CBA.

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Full text of the Administrator's Interpretation:

Wage and Hour Division (WHD)

Administrator's Interpretation No. 2010-3

June 22, 2010

Issued by DEPUTY ADMINISTRATOR NANCY J. LEPPINK

________________________________________

SUBJECT: Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child.

________________________________________

The Administrator has determined that additional clarification is needed on the definition of “son or daughter” as it applies to an employee taking FMLA-protected leave for the birth or placement of a child, to care for a newborn or newly placed child, or to care for a child with a serious health condition. Based on the Wage and Hour Division’s experience in administering the FMLA, it is evident that many employees and employers are unsure of how the FMLA applies when there is no legal or biological parent-child relationship. The Administrator is issuing this interpretation to provide needed guidance on this important area of law.

Background

The FMLA entitles an eligible employee to take up to 12 workweeks of job-protected leave, in relevant part, “[b]ecause of the birth of a son or daughter of the employee and in order to care for such son or daughter,” “[b]ecause of the placement of a son or daughter with the employee for adoption or foster care,” and to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A) - (C); 29 C.F.R. § 825.200. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is— (A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.[1]

The Wage and Hour Division has received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child.

In Loco Parentis

The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. 29 U.S.C. § 2612(a)(1)(A) - (C). The definition of “son or daughter” under the FMLA includes not only a biological or adopted child, but also a “foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 29 U.S.C. § 2611(12). See also 29 C.F.R. §§ 825.122(c), 825.800.

Congress intended the definition of “son or daughter” to reflect “the reality that many children in the United States today do not live in traditional ‘nuclear’ families with their biological father and mother. Increasingly, those who find themselves in need of workplace accommodation of their child care responsibilities are not the biological parent of the children they care for, but their adoptive, step, or foster parents, their guardians, or sometimes simply their grandparents or other relatives or adults.” See S. Rep. No. 103-3, at 22. Congress stated that the definition was intended to be “construed to ensure that an employee who actually has day-to-day responsibility for caring for a child is entitled to leave even if the employee does not have a biological or legal relationship to that child.” Id.

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” Niewiadomski v. U.S., 159 F.2d 683, 686 (6th Cir. 1947) (quotations omitted). Black’s Law Dictionary defines the term in loco parentis as “in the place of a parent.” Black’s Law Dictionary 803 (8th ed. 2004). “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” Dillon v. Maryland-National Capital Park and Planning Comm’n, 382 F. Supp. 2d 777, 787 (D. Md. 2005), aff’d 258 Fed. Appx. 577 (4th Cir. 2007) (citations omitted; emphasis in original).

Whether an employee stands in loco parentis to a child is a fact issue dependent on multiple factors. Megonnell v. Infotech Solutions, Inc., 2009 WL 3857451, *9 (M.D. Pa. 2009). Courts have enumerated factors to be considered in determining in loco parentis status; these factors include the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; and the extent to which duties commonly associated with parenthood are exercised. Dillon, 382 F. Supp. 2d 777, 786 -787 (D. Md. 2005). [2]

The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3). Employees who have no biological or legal relationship with a child may nonetheless stand in loco parentis to the child and be entitled to FMLA leave. Id. It is the Administrator’s interpretation that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

It should be noted that the fact that a child has a biological parent in the home, or has both a mother and a father, does not prevent a finding that the child is the “son or daughter” of an employee who lacks a biological or legal relationship with the child for purposes of taking FMLA leave. Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child. Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

Examples of situations in which an in loco parentis relationship may be found include where a grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care, or where an aunt assumes responsibility for raising a child after the death of the child’s parents. Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward), but no such relationship is required to find in loco parentis status. In contrast, an employee who cares for a child while the child’s parents are on vacation would not be considered to be in loco parentis to the child.

Conclusion

Based upon a thorough examination of the relevant factors, it is the Administrator’s interpretation that either day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child. In all cases, whether an employee stands in loco parentis to a child will depend on the particular facts.

________________________________________

[1] This Administrator’s Interpretation does not address an employee’s entitlement to take military FMLA leave for a son or daughter, which is determined by separate definitions. See 29 C.F.R. § 825.122(g), (h).

[2] There is no specific set of factors that, if present, will be considered to be dispositive in determining in loco parentis status. See e.g., Martin v. Brevard County Public Schools, 543 F.3d 1261 (11th Cir. 2008) (fact issue whether employee stood “in loco parentis” to his granddaughter, though the employee provided financial support, shelter, food and health insurance); Dillon, 382 F. Supp. 2d at 787 (genuine issue of material fact as to whether grandmother stood in loco parentis to employee, although grandmother had provided a home and financial support); Brehmer v. Xcel Energy, Inc., No. 06-3294, 2008 WL 3166265, at *7 (D. Minn. 2008) (finding genuine issue of material fact on in loco parentis issue where employee helped his girlfriend's son eat, dress, get ready for bed, took child to doctor appointments and to school, went to child's softball games, and contributed more than half of child's financial support).

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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.

Here's the lineup, with parties and terms in parentheses:

Chairman Wilma B. Liebman (Democrat, August 2011)
Member Peter C. Schaumber (Republican, August 2010)
Member Craig Becker (Democrat, Recess appointment expires at the end of 2011)
Member Mark Gaston Pearce (Democrat, December 2013)
Member Brian Hayes (Republican, December 2012)

Mr. Pearce was a founding partner of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux, where he practiced union side labor and employment law before state and federal courts and agencies. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his law degree from State University of New York, and his undergraduate degree from Cornell University.

Mr. Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions. Previously Mr. Hayes was in private practice for 25 years representing management clients in labor and employment law. He began his legal career as a clerk for the NLRB’s Chief Administrative Law Judge, and later served as counsel to the Board Chairman. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center.

Member Craig Becker's appointment has drawn intense criticism from Republicans in the Senate, and I do not expect he will ever be confirmed.

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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.

Labor Secretary Hilda Solis planned to announce Wednesday that the government would require employers to extend the option that has been available to heterosexual workers for almost two decades, two officials briefed on the plan said Monday. Neither was authorized to speak publicly ahead of the announcement.

The move, coming less than five months before November's congressional elections, seemed likely to incite conservatives and Republicans who stood in lockstep against the Obama administration's earlier efforts to repeal a ban on gays and lesbians serving openly in the military. It also appeared likely to be popular with loyal Democrats and organized labor.

The Family and Medical Leave Act allows workers to take up to 12 weeks of unpaid leave each year to take care of loved ones or themselves. The 1993 law, which also allows employees to take time off for adoptions, has previously only been applied to heterosexual couples.

The Labor Department planned to extend those rights based on a new interpretation of the law, the officials said. There was no plan to ask Congress to change the law, which means future presidents could reverse the decision.

President Obama and his administration have slowly rolled out policies to help gays and lesbians, who supported his candidacy but have soured on what they consider his slow pace in making incremental instead of wholesale changes. He planned to meet with gay activists Tuesday at the White House, the second time such a reception has been held at the executive mansion.

Gay activists have been frustrated with Obama's approach to gay policies. The White House reluctantly backed a compromise on the military's "don't ask don't tell" policy on gays in the military that would move ahead on repeal but still allow the Pentagon time to implement new policies.

Earlier this month, Obama issued orders for government agencies to extend child care services and expanded family leave to their workers. Obama's order for federal employees, though, covers only benefits that can be extended under existing law, without congressional action. Legislative action would be required for a full range of health care and other benefits.

Last year, Obama gave federal workers' same-sex partners a first round of benefits including visitation and dependent-care rights. He also authorized child-care services and subsidies; more flexibility to use family leave to attend to the needs of domestic partners and their children; relocation benefits; giving domestic partners the same status as family members when federal appointments are made; and access to credit union and other memberships when those are provided to federal workers.

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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."

Jackson sued under 42 USC Section 1981, claiming race discrimination and retaliation. The trial court granted the employer's motion to dismiss and to compel arbitration. The 9th Circuit (2-1) reversed.

Jackson argued that the arbitration agreement was unconscionable, and that the issue of unconscionability must be decided by a court rather than an arbitrator.

The US Supreme Court held (5-4) that under the Federal Arbitration Act, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator.

The agreement contained two arbitration provisions, one to arbitrate employment disputes, and a second to give the arbitrator exclusive authority to resolve the "gateway" question of whether the agreement is enforceable. The employer sought enforcement of the second provision, which is severable from the rest of the contract. Jackson did not challenge this second provision specifically, so the Court treated his challenge as a challenge to the whole contract. It is well settled that a challenge to the whole contract is an issue to be resolved by the arbitrator rather than the court.

The DISSENT argued that the majority improperly applied the rule of severability. Jackson did challenge the validity of the arbitration agreement and should not have to object to "the particular line in the agreement" that purports to assign the validity issue to the arbitrator.

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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. Previously he served in various positions on the General Counsel and Board side of the agency, including as staff attorney to 10 Board members. (The Board members were Don Zimmerman, Donald Dotson, Jerry Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman). He earned a B.A. degree in Economics from Brown University and a J.D. from Tulane University.

Ronald Meisburg, the previous General Counsel, had earlier announced his resignation, effective Sunday night June 20, to join the law firm of Proskaeur Rose. His term was due to expire in August 2010. Mr. Solomon was appointed to the position under the Federal Vacancies Reform Act of 1998.

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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. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. On December 31, one of the group Member's term expired, and the remaining two Members issued nearly 600 Board decisions over the next 27 months.

The US Supreme Court (5-4) held that NLRA Section 3(b) requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the NLRB. The Court said,

"reading the delegation clause [the first sentence of §3(b)] to require that the Board’s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in §3(b)."

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City of Ontario v. Quon (US Supreme Ct 06/17/2010).

The City provided alphanumeric pagers to police officers on the SWAT team. After Sgt. Quon exceeded his allotted usage limit, the City acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit.

Quon and those with whom he had exchanged messages sued claiming an unlawful search in violation of the 4th amendment. The trial court found that officers had a reasonable expectation of privacy in the text messages, but that the search did not violate the 4th amendment. The 9th Circuit reversed, holding that the search was unreasonable as matter of law.

The US Supreme Court reversed, holding that the search of Quon's text messages was reasonable and did not violate the 4th amendment. The search was motivated by a legitimate work-related purpose, and it was not excessive in scope.

(The Court assumed - without deciding - that Quon had a reasonable expectation of privacy.)

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