Labor and Employment Law News - April 2007

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2006

Employee Confidentiality Rule Violates the NLRA 
        Private sector employer rules or statements that forbid employees from discussing their wages or other working conditions are clear violations of Sec. 7 rights under the National Labor Relations Act. A recent D.C. Circuit Court of Appeals case is an interesting example. Cintas Corp. v. NLRB, Case No.05-1305 ( D.C. Cir. Mar. 16, 2007).
        In that case, the employer had a rule that said that employees could be punished if they violated a confidence or released confidential information without authorization. The court held that even though the rule did not directly forbid conversations about working conditions, its wording was so broad that employees could reasonably think that it prohibited those discussions. In addition, even if no employee had ever been disciplined under the rule, just maintaining such a broad rule might keep employees from exercising their rights to discuss working conditions.

Piercing the Corporate Veil Makes Company Owner Liable for NLRA Back Pay
        One of the benefits of incorporation is that investors are not individually liable for corporate liabilities. In certain cases, though, this protection is lost, and it is possible to “pierce the corporate veil” to seek payment from a company's owners. In a recent D.C. Circuit Court of Appeals case, the court held that a company's owners were personally liable for back pay owed to workers who had been illegally fired under the National Labor Relations Act. Carpenters & Millwrights Local 2471 v. NLRB, Case No.05-1416 (D.C. Cir. Mar.16, 2007).
        Courts are willing to pierce the corporate veil only when (1) a company's owner has behaved in a way that dissolves the separation between the owners and the corporations and (2) adhering to the “corporate structure would sanction a fraud, promote injustice, or lead to an evasion of legal obligations.” A classic situation is an owner who treats the corporate treasury as his personal piggy bank.
        In this case, the two owners had always commingled their personal funds with those of their company, “disregarded corporate formalities and procedures, failed to maintain separate corporate records, and kept the company in an undercapitalized state.” When the owners were found liable for a number of unfair labor practices, they raided the company's assets, paying themselves each $1.8 million, and then dissolved the company, making it impossible for the company to pay the backpay it owed for its violations. As a result of these actions, the court held that the owners were liable for the backpay.

Evidence Barred by the Statute of Limitations May be Relevant to Proving a Violation
        In a recent case, the Michigan Court of Appeals held that a plaintiff who sued for race discrimination and retaliation is entitled to use evidence that is barred by the statute of limitations to support his claims of discrimination. Those actions cannot be a basis for recovery, but they are admissible as background evidence to support claims that are not barred. For example, testimony of anti-Indian statements made before the statute of limitations ran could be used to prove a claim of race discrimination along with other evidence within the statute of limitations. Ramanathan v. Wayne State University Board of Governors, Case No. 266238 (Mich. Ct. App. Jan. 4, 2007)

Workers Compensation When an Employee Works Away from Home
        The general rule is that a worker who is injured on the way to work is not entitled to workers compensation. There are a number of exceptions to this rule. One exception permits compensation when a worker is injured while traveling between worksites. An example would be a home health care aide who cares for a number of clients in their homes.
        The Michigan Supreme Court recently considered whether an injured worker qualified under the “traveling employee” doctrine. It holds that “employees who are traveling on a business trip are considered to be continuously within the scope of their employment for the duration of the business trip, except when a distinct departure on a personal errand is shown.” The employee was injured when traveling from a temporary lodging to eat a meal while working on an assignment 200 miles from his home. The question is whether the employee was away from home for the employer's benefit and whether that employment caused me to be at the place he where he was injured. If so, the employee is continuously within the scope of employment during the trip. That means that the injured employee can recover worker's compensation benefits, except when distinctly on a personal errand. Bowman v. R.L. Coolsaet Construction Co., Case No.258518 (MI Dec. 29, 2006)


Web Links

National Academy for Public Administration, Report on the Equal Employment Opportunity Commission's National Contact Center
AARP, Watchdog Report
John J. Fitzpatrick Jr., State Labor Legislation Enacted in 2006, Monthly Labor Review (Jan. 2007)
Center for Economic and Policy Research, Decline in African-American Representation in Unions and Manufacturing, 1979-2006
Ontario Workplace Safety and Insurance Board, Musculoskeletal Disorder Prevention Guidelines
The Brookings Institution, The Implications of Service Offshoring for Metropolitan Economies
Towers Perrin, From Responsibility to Action – Making Benefit Change Work
United Kingdom's Health and Safety Executive, An Investigation of Reporting of Workplace Accidents under Riddor Using the Merseyside Accident Information Model
Occupational Health Clinics for Ontario Workers (OHCOW), Cancer and Construction: What Occupational Histories in a Canadian Community Reveal
Census Bureau, Educational Attainment in the United States: 2006
Census Bureau, Health Insurance Reports
Boston College's Center on Aging & Work, Issue Briefs on Older Workers
Issue Brief 1: Older Workers: What Keeps Them Working?
Issue Brief 2: Businesses: How Are They Preparing For the Aging Workforce?
Issue Brief 3: Getting the Right Fit: Flexible Work Options and Older Workers
Issue Brief 4: How Old Are Today's Older Workers?
Issue Brief 5: One Size Doesn't Fit All: Workplace Flexibility
Access Project & Brandeis University, The Illusion of Coverage: How Health Insurance Fails People When They Get Sick

Recent Labor and Employment Law Publications

Kristin Abbinante, Comment: Taming the Nature of the Beast: Why a Reasonable Accommodation for a Perceived Disability Should No Longer Be Considered the ADA's Necessary Evil, 32 U. Dayton L. Rev. 63 (2006)

Mark Adams, The Quest for Tenure: Job Security and Academic Freedom, 56 Cath. U. L. Rev. 67 (2006)

Miriam Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L. Soc'y 18 (2005)

Katharine Baker, Supporting Children, Balancing Lives, 34 Pepp. L. Rev. 359 (2007)

Richard Bales, Normative Consideration of Employment Arbitration at Gilmer's Quinceanera, 81 Tul. L. Rev. 331 (2006)

Jeffrey Bauman, Recent Developments in the Law: Public Sector Labor Relations, 44 Duq. L. Rev. 419 (2006)

Jennifer Bercovici, Note: The Workplace Romance and Sexual Favoritism: Creating a Dialogue Between Social Science and the Law of Sexual Harassment. 16 S. Cal. Interdisc. L.J. 183 (2006)

Richard Block, Work-family Legislation in the United States, Canada, and Western Europe: a Quantitative Comparison, 34 Pepp. L. Rev. 333 (2007)

Lora Cicconi, Comment: Competing Goals Amidst the "Opt-out" Revolution: An Examination of Gender-based Tax Reform in Light of New Data on Female Labor Supply. 42 Gonz. L. Rev. 257 -297 (2006/07)

Ciolli, Anthony. Note: The Medical Resident Working Hours Debate: A Proposal for Private Decentralized Regulation of Graduate Medical Education, 7 Yale J. Health Pol'y L. & Ethics 175 (2007)

Timothy Crisafulli, Comment: No Educator Left Unscathed: How No Child Left Behind Threatens Educators' Careers, 2006 BYU Educ. & L.J. 613

Edward De Grazia, The Haymarket Bomb, 18 Law & Lit. 283 (2006)

Trek Doyle & Jarrett Andrews, Comparative Responsibility in Nonsubscriber Litigation Revisited after Kroger Co. v. Keng, 38 St. Mary's L.J. 443 (2007)

Jennifer Drobac, I Can't to I Kant: The Sexual Harassment of Working Adolescents, Competing Theories, and Ethical Dilemmas, 70 Alb. L. Rev. 675 (2007)

Werner Eichhorst & Regina Konle-Seidl, The Interaction of Labor Market Regulation and Labor Market Policies in Welfare State Reform, 28 Comp. Lab. L. & Pol'y J. 1 (2006)

Lee Epstein, Andrew Martin & Matthew Schneider, On the Effective Communication of the Results of Empirical Studies, Part I, 59 Vand. L. Rev. 1811 (2006)

Dawn Franklin, Comment: The Outsiders: Broadening the Scope of Standing in Whistleblower Actions, 20 J. Nat. Resources & Envtl. L. 281 (2005-2006)

Elizabeth Fordyce, Comment: The Elusive Protected Class – Who Is Worthy under the Americans with Disabilities Act? 51 Vill. L. Rev. 1031 (2006)

Shana Fried, Note: Strengthening the Role of the U.S. Court of International Trade in Helping Trade-Affected Workers, 58 Rutgers L. Rev. 747 (2006)

Jarod Gonzalez, Sox, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials, 9 U. Pa. J. Lab. & Emp. L. 25 (2006)

Jennifer Gonzales-Frisbie, Comment: Personality Tests in Jeopardy: An Evaluation of the Seventh Circuit's Decision in Karraker v. Rent-a-center and its Impact of the Future Use of Personality Tests in Pre-employment Screening, 9 U. Pa. J. Lab. & Emp. L. 185 (2006)

Todd Goodsell, Comment: On the Continued Need for H-1b Reform: A Partial, Statutory Suggestion to Protect Foreign and U.S. Workers, 21 BYU J. Pub. L. 153 (2007)

Jeffrey Gorris, Comment: Waivers of ERISA Plan Benefits: Preventing Judicial Interpretations of a Complex Statute from Frustrating the Statute's Simple Purpose, 155 U. Pa. L. Rev. 717 (2007)

Jonathan Gutoff, Fugitive Slaves and Ship-Jumping Sailors: the Enforcement and Survival of Coerced Labor, 9 U. Pa. J. Lab. & Emp. L. 87 (2006)

Michael Hawkins & Shawn Burton, Oakwood Healthcare Inc., 348 N.L.R.B. No.37 (2006): How Textualism Saved the Supervisory Exemption, 9 U. Pa. J. Lab. & Emp. L. 1 (2006)

Robert Hayden, Justice Presumed and Assistance Denied: the Yugoslav Tribunal as Obstruction to Economic Recovery, 19 Int'l J. for Semiotics L. 389 (2006)

Laura Holland, Note: Government Contractors Hiring Undocumented Workers: National Security Implications and Solutions, 36 Pub. Cont. L.J. 263 (2007)

Laura Kessler, Keeping Discrimination Theory Front and Center in the Discourse over Work and Family Conflict, 34 Pepp. L. Rev. 313 (2007)

Kevin Kolben, Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes, 48 Harv. Int'l L.J. 203 (2007)

Kara Leitner & Simon Lester, WTO Dispute Settlement from 1995 to 2005 – A Statistical Analysis, 9 J. Int'l Econ. L. 219 (2006)

Mark Lightner, Comment: Pre-hearing Discovery in Arbitration and its Impact on the Application of Nonmutual Offensive Collateral Estoppel, 38 Ariz. St. L.J. 1111 (2006)

Nadjia Limani, Note: Righting Wrongful Discharge: A Recommendation for the New York Judiciary to Adopt a Public Policy Exception to the Employment-at-Will Doctrine, 5 Cardozo Pub. L. Pol'y & Ethics J. 309 (2006)

Charles Little, Comment: Transsexuals and the Family Medical Leave Act, 24 J. Marshall J. Computer & Info. L. 315 (2006)

Richard Lord, The At-will Relationship in the 21st Century: A Consideration of Consideration. 58 Baylor L. Rev. 707 (2006)

Yoram Margalioth, The Case Against Tipping, 9 U. Pa. J. Lab. & Emp. L. 117 (2006)

Michael Mattioli, Comment: The Impact of Open Source on Pre-invention Assignment Contracts, 9 U. Pa. J. Lab. & Emp. L. 207 (2006)

Susan Martin, Executive Compensation: Reining in Runaway Abuses – Again, 41 U.S.F. L. Rev. 147 (2006)

Kim Millman, Comment: An Argument for Cadillacs Instead of Chevrolets: How the Legal System Can Facilitate the Needs of the Twice-Exceptional Child, 34 Pepp. L. Rev. 455 (2007)

Andrew Mitchell, Proportionality and Remedies in WTO Disputes, 17 Eur. J. Int'l L. 985 (2006)

David Monsma, The Academic Equivalence of Science and Law: Normative Legal Scholarship in the Quantitative Domain of Social Science, 23 T.M. Cooley L. Rev. 157 (2006)

Caryn Nutt, Comment: Interpreting the Extraterritorial Effect of the Civil Whistleblower Protection Provision of the Sarbanes-Oxley Act, 41 U.S.F. L. Rev. 201 (2006)

Brendon O'Dell, Comment: Judicial Rewriting of Indian Employment Preferences, 31 Am. Indian L. Rev. 187 (2006-2007)

Daniel O'Gorman, Looking out for Your Employees: Employers' Surreptitious Physical Surveillance of Employees and the Tort of Invasion of Privacy, 85 Neb. L. Rev. 212 (2006)

Sarah Parrot, Note: The ADA and Reasonable Accommodation of Employees Regarded as Disabled: Statutory Fact or Bizarre Fiction? 67 Ohio St. L.J. 1495 (2006)

Leann Petrilla, Recent Decision. Attorneys must Manifest Express Authority in Order to Create a Binding Settlement Agreement on Behalf of Their Client, 44 Duq. L. Rev. 533 (2006)

David Pozen, Note: The Regulation of Labor and the Relevance of Legal Origin, 28 Comp. Lab. L. & Pol'y J. 43 (2006)

Benjamin Quest, Comment: Process Theory and Emerging Thirteenth Amendment Jurisprudence: The Case of Agricultural Guestworkers, 41 U.S.F. L. Rev. 233 (2006)

Andrew Rice, Note: Eddy Curry and the Case for Genetic Privacy in Professional Sports, 6 Va. Sports & Ent. L.J. 1 (2006)

Mitchell Rubinstein, Our Nation's Forgotten Workers: the Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 (2006)

Andrea Schmitt, Comment: Ending the Silence: Thai H-2a Workers, Recruitment Fees, and the Fair Labor Standards Act, 16 Pac. Rim L. & Pol'y J. 167 (2007)

Joseph Seiner, Disentangling Disparate Impact and Disparate Treatment: Adapting the Canadian Approach, 25 Yale L. & Pol'y Rev. 95 (2006)

Joseph Seiner, Understanding the Unrest of France's Younger Workers: The Price of American Ambivalence, 38 Ariz. St. L.J. 1053 (2006)

Holger Spamann, The Myth of 'Rebalancing' Retaliation in Wto Dispute Settlement Practice, 9 J. Int'l Econ. L. 31 (2006)

Allison Steinle, Comment: Appearance and Grooming Standard as Sex Discrimination in the Workplace, 56 Cath. U. L. Rev. 261 (2006)

Daxon Stewart, The Promise of Arbitration: Can it Succeed in Journalism as it Has in Other Businesses? 6 Appalachian J.L. 135 (2006)

Marlena Studer, Negotiating the "Labor of Law": How Resources, Time, and Gender Shape Parenting Agreements, 34 Pepp. L. Rev. 417 (2007)

Symposium Issue: Employer-Sponsored Health Care Plans, 19 St. Thomas L. Rev. 1 (2006)

Symposium: Moving Beyond the Black/white Paradigm: Coalition Building in the Twenty-first Century, 12 Wash. & Lee J. Civ. Rts. & Soc. Just. 1 (2005)

Symposium: Balancing Career & Family: A Work/life Symposium, 34 Pepp. L. Rev. 313 (2007)

Symposium: the Rehnquist Court and the First Amendment. 21 Wash. U. J.L. & Pol'y 1 (2006)

Symposium: Religion, Division, and the Constitution, 15 Wm. & Mary Bill Rts. J. 1 (2006)

Sarah Taylor, Comment: Fostering Economic Growth in the High-technology Field: Washington Should Abandon its Recognition of the Inevitable Disclosure Doctrine, 30 Seattle U. L. Rev. 473 (2007)

Paul Teague, New Employment Times and the Changing Dynamics of Conflict Resolution at Work: the Case of Ireland, 28 Comp. Lab. L. & Pol'y J. 57 (2006)

Paul Trumble, Comment: "Knickel" and Dime Issues: An Unexplored Loophole in New York's Genetic Discrimination Statute and the Viability of Genetic Testing in the Sports Employment Context, 70 Alb. L. Rev. 771 (2007)

Michael Wachter, Labor Unions: A Corporatist Institution in a Competitive World, 155 U. Pa. L. Rev. 581 (2007)

Joanna Wade, Indirect Sex Discrimination – a View from Across the Pond. 41 U.S.F. L. Rev. 191 (2006)

Melissa Weresh, Form and Substance: Standards for Promotion and Retention of Legal Writing Faculty on Clinical Tenure Track, 37 Golden Gate U. L. Rev. 281 (2007)

Jennifer Westerfield, Note: Behind the Veil: An American Legal Perspective on the European Headscarf Debate, 54 Am. J. Comp. L. 637 (2006).

Joan Williams & Stephanie Bornstein, Caregivers in the Courtroom: the Growing Trend of Family Reponsibilities Discrimination, 41 U.S.F. L. Rev. 171 (2006)

Joan Williams, Stephanie Bornstein, Diana Reddy & Betsy Williams, Law Firms as Defendants: Family Responsibilities Discrimination in Legal Workplaces, 34 Pepp. L. Rev. 393 (2007)

Debra Yang & Patricia Donahue, Protecting Children from Online Exploitation and Abuse: An Overview of Project Safe Childhood, 34 Pepp. L. Rev. 439 (2007)