Labor & Employment Law Community Emerging Issues

Third Circuit Invalidates President Obama's Recess Appointment to NLRB

plareau@comcast.net (Peter Lareau) — Tue, 18 Jun 2013 12:20:00 -0400

In this Emerging Issue Analysis, N. Peter Lareau, author of "NLRA: Law and Practice" and numerous other books and articles in the field of labor law, summarizes the court's decision in NLRB v. New Vista Nursing & Rehabilitation (New Vista II) and offers some thoughts on its implications for the future.

Excerpt:

In NLRB v. New Vista Nursing & Rehabilitation (New Vista II) [an enhanced version of this opinion is available to lexis.com subscribers

VanDeusen on Levin v. Madigan: Supreme Court to Consider Whether Section 1983 Age Claim Can Proceed

DarrellVanDeusen1@placeholder.com (Darrell VanDeusen) — Wed, 24 Apr 2013 18:48:00 -0400

Federal appellate courts have agreed that an allegation of age discrimination cannot be brought as a Section 1983 claim. In Levin v. Madigan, the Seventh Circuit broke ranks and held that an age claim under Section 1983 is indeed viable. The Supreme Court agreed to address this now present Circuit split, and accepted the case on certiorari. Darrell VanDeusen explains the underlying issue and the implications of the possible results.

Excerpt:

For over two decades Federal appellate courts have agreed that an allegation of age discrimination cannot be brought as a Section 1983 claim. The rationale? The Age Discrimination in Employment Act (ADEA) provides

Lareau on Sandifer v. United States Steel Corp.: Supreme Court to Review "Donning/Doffing" Issue

plareau@comcast.net (Peter Lareau) — Tue, 26 Mar 2013 09:19:00 -0400

The Supreme Court granted the petition for certiorari but limited the Court's review to the donning/doffing issue in Sandifer v. United States Steel Corp. This Emerging Issue Analysis explains the Seventh Circuit decision and comments on the Court's decision to review.

Excerpt:

Introduction In Sandifer v. United States Steel Corp., 678 F.3d 590 (7th Cir. 2012) [an enhanced version of this opinion is available to lexis.com subscribers], a three-judge panel of the Seventh Circuit

VanDeusen on Univ. of Texas Sw. Med. Ctr. v. Nassar: Supreme Court Will Review Scope of Mixed-Motive Theory

DarrellVanDeusen1@placeholder.com (Darrell VanDeusen) — Tue, 26 Feb 2013 10:09:00 -0400

Excerpt:

In what may be the biggest employment case on the Supreme Court's docket this term, the Court will consider the scope and availability of the mixed-motive theory under employment discrimination laws. In Univ. of Texas Sw. Med. Ctr. v. Nassar, the court will address the Circuit split that has developed after the Court's 2009 decision

Lareau on Noel Canning v. NLRB: D.C. Circuit: NLRB Has Lacked Constitutional Quorum Since the Beginning of 2012

plareau@comcast.net (Peter Lareau) — Wed, 06 Feb 2013 10:07:00 -0400

Excerpt:

In Noel Canning v. NLRB, 2013 U.S. App. LEXIS 1659 (D.C. Cir. Jan. 25, 2013) [an enhanced version of this opinion is available to lexis.com subscribers], the D.C. Circuit invalidated the decision and order of the National Labor Relations Board ("Board") in Noel Canning, holding that President Obama lacked constitutional authority for the three appointments to the Board that he announced in early 2012 and that, consequently, the Board has lacked quorum since at least the time of those appointments. In this Emerging Issues

Lareau on WKYC-TV: Abandoning Precedent, Board Holds Dues Deduction Clause Survives Contract Expiration

plareau@comcast.net (Peter Lareau) — Mon, 04 Feb 2013 13:28:00 -0400

This EIA discusses a recent decision of the NLRB that overturned 50 years of precedent. The impact of the Boards decision in WKYC-TV, holding that dues deduction clauses can survive contract expiration is analyzed with practical insight and commentary.

Excerpt:

Although not expressly set forth in the National Labor Relations Act ("Act"), the statutory obligation to bargain collectively has been interpreted by the National Labor Relations Board ("Board") and the courts as prohibiting an employer from making unilateral changes in terms and conditions of employment, i.e., making changes without first providing the union with an opportunity to bargain about those changes

Noel v. New York State Office of Mental Health, Central New York Psychiatric Center, 697 F.3d 209 (2nd Cir. 2012): Court of Appeals for the Second Circuit Holds that Front Pay Is Wages for FICA

BarrySalkin@placeholder.com (Barry L. Salkin) — Fri, 25 Jan 2013 09:14:00 -0400

What if your client's award is reduced for FICA tax withholding and you don't warn the client? What happens if an employer fails to withhold FICA taxes from an award of front pay? Barry L. Salkin of Olshan Frome Wolosky LLP addresses these and the other issues.

Excerpt:

What is FICA? FICA, or Social Security tax, is owed on all remuneration paid by an employer to employees. One-half of the applicable FICA taxes is imposed against the employee, and the remaining one-half is imposed against the employer. The employer is required to withhold from an employee's pay the employee's portion of the FICA taxes.

FICA tax is composed of two parts: an Old Age Survivor and Disability

Lareau on Cofire Paving Corp.: Employer's Bargaining Obligation When Compliance with Union Contract Impossible

plareau@comcast.net (Peter Lareau) — Tue, 15 Jan 2013 09:41:00 -0400

The NLRB addressed, for the first time, the issue of the extent of an employer's bargaining obligation to a successor union when the employer, for reasons not under its control, is unable to maintain the terms and conditions of employment that prevailed under the predecessor union's collective bargaining agreement. The author concludes that the decision is at least partially incorrect and will present nuanced questions for appellate review.

Excerpt:

An employer whose employees are represented by a union violates the National Labor Relations Act if it changes the terms and conditions of those employees' employment without bargaining with the union about the changes. Moreover, when one union

Supreme Court Rules on Appropriate Venue for Review of Merit System Protection Board Decisions

plareau@comcast.net (Peter Lareau) — Tue, 08 Jan 2013 16:35:00 -0400

The Supreme Court confirmed that under the Civil Service Reform Act of 1978, final rulings of the MSPB in specified cases are to be reviewed by the federal district courts. This EIA concludes that the complicated facts of the case, coupled with the convoluted arguments presented by the federal government resulted in a Supreme Court opinion that should never have been necessary.

Excerpt:

In Kloeckner v. Solis [an enhanced version of this opinion is available to lexis.com subscribers], the Supreme Court confirmed that under the Civil Service Reform

Does the California Uniform Trade Secrets Act Preempt a Common Law Breach of Loyalty Claim?

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Thu, 03 Jan 2013 11:11:00 -0400

by William J. Brutocao

Excerpt:

When an employee decides to quit his job and go into competition with his employer, either by setting up a new enterprise or by working for a competitor, what part of his employer's information can he take with him? Turning that question around, what information can the employer protect from disclosure or use by a departing employee?

If there is a written employment contract, that document will of course have a substantial impact on the inquiry. Employers seek to prevent competition by departing employees. An employment contract might restrict competition, but in some jurisdictions, notably California, a post employment non-competition covenant

California Enacts Law Limiting Employers' Access to Employees' Social Media: What Employers Need to Know to Avoid the Minefields

SweenLuke@placeholder.com (Lisa Barnett Sween and Jessica Anne Luke) — Wed, 05 Dec 2012 09:51:00 -0400

Whether you "like" it or not, social media is changing the legal landscape of employee privacy rights at a rapid pace. On September 27, 2012, California Governor Jerry Brown signed into law AB 1844, which prohibits employers from requiring (or requesting) employees or applicants to divulge their social media log-on information. This article

Oregon Supreme Court Weeds Out Medical Marijuana Accommodation Claims in the Workplace

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Fri, 16 Nov 2012 12:03:00 -0400

by Karin Jones

The Oregon Supreme Court has confirmed that employers are not obligated to accommodate the use of medical marijuana by disabled or other employees, holding in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore. 159, 230 P.3d 518 (2010) that federal law preempts Oregon's legislation authorizing medical marijuana use.

Excerpt:

Introduction. Overruling an earlier Court of Appeals decision, the Oregon Supreme Court held, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, that Oregon employers are not obligated to accommodate employees' medical use of marijuana, even when that use is linked to a disabling medical condition [Emerald Steel Fabricators

The Patient Protection and Affordable Care Act and How It Impacts Employers

Mon, 20 Aug 2012 11:49:00 -0400

by Elise D. Klein & Joseph K. Hegedus

In National Federation of Independent Business v. Sebelius, No. 11-393 (U.S. June 28, 2012), the Supreme Court of the United States upheld the constitutionality of the Act as a whole, excepting only one provision that deals with the federal government's grant of Medicaid funds to states.

Excerpt:

Note: Case links below are accessible by lexis.com subscribers

The Court's opinion was one of the most anticipated in about half a century

Cheng on Sweeping Changes to FEHA Enforcement to Come in 2013

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Thu, 09 Aug 2012 13:55:00 -0400

SUMMARY: On June 27, 2012, Governor Edmund G. Brown, Jr., signed into law Senate Bill 1038, a trailer bill to the 2012-13 State Budget, which will make sweeping changes to enforcing the California Fair Employment and Housing Act. This Emerging Issues Analysis discusses these changes and offers practical advice.

EXCERPT: On June 27, 2012, Governor Edmund G. Brown, Jr., signed into law Senate Bill 1038, a trailer bill to the 2012-13 State Budget, which will make sweeping changes to enforcing the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA) effective January 1, 2013. (See 2012 Reg. Sess., ch. 46, 2012 Cal. Stat, 18, 27-66, 68, 70, 101 &115.)

To eliminate duplication and maximize efficiency, Senate Bill 1038 will modernize and take enforcement of the FEHA to a new level by

Eliminating the Fair Employment and Housing Commission (Commission) effective January 1, 2013.

Saving taxpayers

Note: Balancing The Scales: Reforming Georgia's Common Law In Evaluating Restrictive Covenants Ancillary To Employment Contracts

dougesten.lnc@gmail.com (LexisNexis Community Staff) — Tue, 07 Aug 2012 13:10:00 -0400

46 Ga. L. Rev. 1117, Summer 2012

Author: Alan Frank Pryor

Excerpt

I. Introduction

Crafting effective and enforceable restrictive covenants ancillary to employment contracts has befuddled and vexed attorneys, courts, and businesses in Georgia for decades. Likened to a dense thicket, considered labyrinthine, and viewed as lost "in a state of perpetual confusion," Georgia's governing common law lay at the heart of the discontent. A former Georgia Supreme Court justice once recognized, "Ten Philadelphia lawyers could not draft an employer- employee restrictive covenant agreement that would pass muster under the recent rulings of [the Georgia Supreme Court

Employment Discrimination Class Actions: Why Plaintiffs Must Cover All Their Bases After the Supreme Court's Interpretation of Federal Rule of Civil Procedure 23(a)(2) in Wal-Mart v. Dukes

dougesten.lnc@gmail.com (LexisNexis Community Staff) — Tue, 07 Aug 2012 10:55:00 -0400

44 Tex. Tech L. Rev. 1087, Summer 2012

Author: Sherry E. Clegg

Excerpt

I. Wal-Mart v. Dukes Signals a Whole New Ballgame for Employment Discrimination Class Actions

Selena Jones works as a female cashier. As a single mother with three kids, she earns $ 8.25 per hour. Selena lives in a downtown apartment. Her landlord hassles her for rent, and she is late paying the water, the electricity, and the phone bill. When she steps into work, a manager pulls her aside, calls her "doll," and tells her to wear more makeup. In addition, the company recently promoted a male cashier, hired three years after Selena, into the assistant manager position. Selena never saw

Mo' Claims Mo' Problems: How Courts Ignore Multiple Claimants in Employment Discrimination Litigation

dougesten.lnc@gmail.com (LexisNexis Community Staff) — Tue, 07 Aug 2012 08:57:00 -0400

30 Law & Ineq. 339, Summer 2012

Author: Emma Reece Denny

Excerpt

Introduction

"The identity cannot be compartmentalized; it cannot be split in halves or thirds, nor have any clearly defined set of boundaries. I do not have several identities, I only have one, made of all the elements that have shaped its unique proportions." -Amin Maalouf

Beginning with Kimberle Crenshaw's groundbreaking 1989 article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, the legal world started to analyze how antidiscrimination law marginalizes

Supreme Court Preview: VanDeusen and Marsh on Vance v. Ball State University

DarrellVanDeusen1@placeholder.com (Darrell VanDeusen) — Tue, 31 Jul 2012 15:30:00 -0400

Excerpt:

Note: Case links below are accessible by lexis.com subscribers

Vance v. Ball State University (lexis.com subscribers may access Supreme Court briefs for this case) addresses an issue that has split the federal appellate courts in harassment cases: who is a "supervisor" under Title VII of the Civil Rights Act of 1964? Three Circuits -- the First, Seventh, and Eighth

Working Late -- Are Pharmaceutical Sales Representatives Entitled to Overtime?

lleader@kentlaw.edu (Laurie E. Leader) — Wed, 11 Jul 2012 09:14:00 -0400

In Christopher v. SmithKline Beecham Corp., the United States Supreme Court held that pharmaceutical sales representatives ("PSRs," also known as "detailers") qualify as "outside salesmen" exempt from minimum wages and overtime under the Fair Labor Standards Act (FLSA). The plurality decision resolved a conflict among the circuits as to whether PSRs "make sales" within the meaning of the outside sales exemption.

Excerpt: In Christopher v. SmithKline Beecham Corp., by a five to four vote, the United States Supreme Court held that PSRs are exempt from overtime wages within the meaning of the FLSA's outside sales exemption. Justice Alito authored the opinion of the Court. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor and Kagan joined.

The FLSA exempts "outside salesmen" from minimum wages and overtime but fails to define the scope of the exemption. The regulations

Lareau on Knox v. SEIU: A Mortal Wound?

plareau@comcast.net (Peter Lareau) — Tue, 03 Jul 2012 14:07:00 -0400

SUMMARY: This Emerging Issues Analysis suggests that the importance of this case lies not in the conclusion the Court reached about special assessments for public sector unions, but in what the decision portends for the heretofore routine procedures used by public sector unions to collect fees from nonmembers as part of their annual dues structure.

EXCERPT: In Knox v. SEIU, Local 1000, a 5-justice majority of the Supreme Court held that a public sector union could not rely on its annual notice to employees of the State of California (informing them of the amount of union dues/agency fee they would be required to pay during the forthcoming year) when it subsequently levied a special assessment the proceeds of which were to be used solely for political purposes. Such an assessment, said the majority, required its own notice and the failure to give that notice

Teflon Coating of Qualified Immunity for Temporary Government Employees Under Section 1983?

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Fri, 22 Jun 2012 12:18:00 -0400

The recent unanimous U.S. Supreme Court opinion, Filarsky v. Delia, held that private attorneys representing the government may enjoy qualified immunity from suit. Stephen A. Mesi, Deputy Attorney General in the California Department of Justice, discusses the Supreme Court's latest word on Section 1983 immunity.

Excerpt:

What do Abraham Lincoln, John Marshall, and Daniel Webster have in common? All represented the government at some point in their private legal careers. The recent unanimous U.S. Supreme Court opinion, Filarsky v. Delia [an enhanced version of

Easy Come, Easy Go: Court Invalidates New NLRB Election Rule

plareau@comcast.net (Peter Lareau) — Thu, 21 Jun 2012 11:46:00 -0400

In May 2012 a federal district court held the new NLRB election rule to be invalid because the Board lacked a quorum when it purported to adopt it. Although the Board has temporarily suspended the implementation of the rule, which had gone into effect on April 30, 2012, the future implications of the court's decision are unclear. This EIA includes analysis of the court's decision and discussion of what may lie ahead.

Excerpt:

On May 14, 2012, the United States District Court for the District of Columbia, Judge James E. Boasberg, held that the National Labor Relations Board's new rule ("Rule"), modifying the procedures used by the Board to process petitions seeking to resolve questions

Only the Beginning? First Circuit Panel Invalidates Key Provision of Defense Of Marriage Act

plareau@comcast.net (Peter Lareau) — Mon, 18 Jun 2012 16:47:00 -0400

In May 2012, a three-judge panel of the U.S. Court of Appeals for the First Circuit held that the definition of "marriage" set forth in Section 3 of the Defense of Marriage Act ("DOMA") does not pass constitutional muster. If the decision is upheld by the Supreme Court, repercussions (and confusion) could be immense.

Facts

Section 3 of the Defense of Marriage Act ("DOMA") defines marriage as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as

VanDeusen on Coleman v. Maryland Court of Appeals

DarrellVanDeusen1@placeholder.com (Darrell VanDeusen) — Mon, 21 May 2012 15:34:00 -0400

In Coleman v. Maryland Court of Appeals [an enhanced version of this opinion is available to lexis.com subscribers], the Fourth Circuit joined five other appellate courts in holding that the self-care provision of the Family and Medical Leave Act does not apply to the states because Congress did not properly abrogate the states' Eleventh Amendment immunity. Despite the lack of any apparent Circuit split on the issue, the Supreme Court granted Coleman's petition for a writ of certiorari to address the question of "[w]hether Congress constitutionally abrogated

Employees May Choose a Working Lunch (But Employers Beware): An Analysis of Brinker Restaurant Corp. v. Superior Court

Labor.Employment@lnstaff.com (LexisNexis Labor & Employment Law Community Staff) — Tue, 15 May 2012 14:59:00 -0400

In Brinker Restaurant Corp. v. Superior Ct, the California Supreme Ct, gave employers a major, if incomplete, victory, holding that employers must provide (not ensure) that meal periods are taken. But what affirmative steps -- if any -- must employers take to encourage breaks? Under a "provide" standard, when -- if ever -- will class certification be appropriate? Employers should expect litigation to continue, but can take steps now to reduce risk.

Excerpt:

In Brinker Restaurant Corp. v. Superior Court, a unanimous California Supreme Court gave employers a major, if incomplete, victory, holding that employers' statutory obligation to "provide" employees with meal periods does not mean that employers