Labor and Employment Law News - April 2008

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008

Barring Employee Speech
Private sector employees have a legal right to discuss working conditions and unionization while at work. Rules that bar employees from talking about working conditions are likely to violate the law. However, the boundaries of that right may be affected by the nature of the employer's business needs. For example, in a recent case a hospital's written policies legally prohibited solicitation and distribution of literature only in patient-care and areas patients used, while allowing solicitation and distribution during nonwork time in nonwork areas, including employee break areas.

The hospital fell afoul of the law, though. First, it told its nurses that discussions, posting union literature, or other activities related to unionization were banned from employee breakrooms. At the same time, the hospital posted anti-union literature in breakrooms. St. Margaret Mercy Healthcare Centers. v. NLRB, Case No.07-2752 (7 th Cir. Mar. 11 (2008).

Second, the hospital disciplined an employee who asked another nurse to sign a union care while at the nurses station. The employer also told her she could only discuss her concerns about workplace policies with management. Nurses regularly sold Girl Scout cookies and other items and asked for charitable donations in breakrooms and at nurses stations. The Seventh Circuit Court of Appeals unanimously held that all of these actions violated the National Labor Relations Act.

Briefly, employees' legal right to organize with an employer's legitimate interests in operating its business. As a result, employers are allowed to regulate speech and distributions of literature, but only when they interfere with the employer's business. In addition, barring discussions and literature about working conditions and unions, while allowing other discussions and literature discriminates illegally under the NLRA, while also suggesting that there is no legitimate business need involved.

WARN Act Obligations and At-Will Employment
The Worker Adjustment and Retraining Notification Act – WARN Act – requires employers to give workers 60 days notice of plant closings or mass layoffs. In a recent class action case an employer unsuccessfully raised a number of defenses to that obligation. The employer argued that the employees had waived their WARN Act rights because (1) their employment handbook stated that the employment was at will and thus no notice was require and (2) employees had signed a form that they had received payment for all work they had performed. Franklin v. General Trucking, Case No.07-5002 (W.D. Ark. Mar. 3, 2008).

The judge noted that the handbook language not only did not support the employer's claim, it actually undermined it. The handbook stated that it was not intended to create a contract, was intended to provide only general information, and could be amended by the employer at any time. In addition, the payment acknowledgment form clearly applied only to wages and could not waive WARN rights, because there was no evidence that the employees knew they had these rights nor that they intended to waive them.

Unconstitutional Drug and Alcohol Testing
Public employers are bound by state and federal constitutions. The Ninth Circuit Court of Appeals recently found that a city violated the Fourth Amendment prohibition against unreasonable searches by withdrawing a job offer after an employee refused to submit to mandatary drug and alcohol test. The court did not hold that the policy itself was invalid. Rather, it held that the way it was applied here was a violation. In this case, the city failed to demonstrate that it had a particularized need to engage in suspicionless testing of an applicant for the position in question. Lanier v. Woodburn, Case No.06-35262 (9th Cir. Mar. 13, 2008).

Web Links

Department of Labor Bureau of Labor Statistics, Job Openings and Labor Turnover Survey

349th Report of the International Labor Organization Committee on Freedom of Association, Complaint against the Government of the United States presented by the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) , Case No. 2524

Employee Benefit Research Institute, Total Individual Account Retirement Plan Assets, by Demographics, 2004 (March 2008)

AARP, Rx Watchdog Report: Trends in Manufacturer Prices of Brand Name Prescription Drugs Used by Medicare Beneficiaries - 2002-2007: Research Report

Employee Benefit Research Institute and the Commonwealth Fund, Findings From the 2007 EBRI/Commonwealth Fund Consumerism in Health Survey

U.S. Department of Education National Center for Education Statistics, Ten Years After College: Comparing the Employment Experiences of 1992-93 Bachelor's Degree Recipients With Academic and Career-Oriented Majors

U.S. Fire Administration, Fire-Related Firefighter Injuries in 2004

Office of Advocacy of the U.S. Small Business Administration (SBA), Small Business Regulatory Review and Reform Initiative, Regulatory Review and Reform (r3) Top 10 Rules, 2008

American Management Association & ePolicy Institute, 2007 Electronic Monitoring & Surveillance Survey

American Management Association and ePolicy Institute, 2007 Electronic Monitoring & Surveillance Survey: Over Half of All Employers Combined Fire Workers for E-Mail & Internet Abuse

Committee on Oversight and Government Reform Memorandum on CEO Pay and the Mortgage Crisis March 6, 2008

Committee on Oversight and Government Reform hearing, “Executive Compensation II: CEO Pay and the Mortgage Crisis ” March 7, 2008

Senate Health, Education, Labor and Pensions (HELP) Committee, Crandall Canyon Mine Report

Recent Labor and Employment Law Articles

Henry Aaron, Health Care Rationing: Inevitable but Impossible? 96 Geo. L.J. 539 (2008)

Miriam Achtenberg, Note: Rereading the National Bank Act's "At Pleasure" Provision: Preserving the Civil Rights of Thousands of Bank Employees, 43 Harv. C.R.-C.L. L. Rev. 165 (2008)

Gregory Acs, A Good Employee or a Good Parent? Challenges Facing Low-Income Working Families, 4 U. St. Thomas L.J. 489 (2007)

Bradford Anderson, Complete Harmony or Mere Detente? Shielding California Employees from Non-Competition Covenants While Simultaneously Protecting Employer Trade Secrets, 8 U.C. Davis Bus. L.J. 8 (2007)

Michael Bagley, Daniel Kniffen & Katherine Dixon, Workers' Compensation, 59 Mercer L. Rev. 463 (2007)

Katharine Baker, The Problem with Unpaid Work, 4 U. St. Thomas L.J. 599 (2007)

Monica Bell, The Obligation Thesis: Understanding the Persistent "Black Voice" in Modern Legal Scholarship, 68 U. Pitt. L. Rev. 643 (2007)

Mary Bedikian, Alternative Dispute Resolution, 53 Wayne L. Rev. 73 (2007)

Joel Berg, Welfare Reform: The Promise Unfulfilled. 11 J. Gender Race & Just. 47 (2007)

Jeremy Blumenthal, Emotional Paternalism, 35 Fla. St. U. L. Rev. 1 (2007)

Johanna Bond, Constitutional Exclusion and Gender in Commonwealth Africa , 31 Fordham Int'l L.J. 289 (2008)

Shelbie Byers, Note: Untangling the World Wide Weblog: A Proposal for Blogging, Employment-at-Will, and Lifestyle Discrimination Statutes, 42 Val. U. L. Rev. 245 (2007)

Allan Carlson, Rise and Fall of the American Family Wage, 4 U. St. Thomas L.J. 556 (2007)

David Clancy & Matthew Stein, An Uninvited Guest: Class Arbitration and the Federal Arbitration Act's Legislative History, 63 Bus. Law. 55 (2007)

Ellinor Coder, Comment: The Homeland Security Safe-Harbor Procedure for Social Security No-match Letters: A Mismatched Immigration Enforcement Tool. 86 N.C. L. Rev. 493 (2008)

Michael Daly, Note: Come One, Come All: The New and Developing World of Nonsignatory Arbitration and Class Arbitration, 62 U. Miami L. Rev. 95 (2007)

Ellen Dannin, Not a Limited, Confined, or Private Matter – Who is an Employee Under the National Labor Relations Act, 59 Lab. L.J. 5 (2008)

Kenneth Dau-Schmidt, The Changing Face of Collective Representation: The Future of Collective Bargaining, 82 Chi.-Kent. L. Rev. 903 (2007)

Kirsten Davis, The Rhetoric of Accommodation: Considering the Language of Work-Family Discourse, 4 U. St. Thomas L.J. 530 (2007)

David Doorey, The Medium and the "Anti-union" Message: "Forced Listening" and Captive Audience Meetings in Canadian Labor Law, 29 Comp. Lab. L. & Pol'y J. 79 (2008)

Rachel Feltman, Comment: Undocumented Workers in the United States : Legal, Political, and Social Effects, 7 Rich. J. Global L. & Bus. 65 (2008)

Tristin Green, Discomfort at Work: Workplace Assimilation Demands and the Contact Hypothesis, 86 N.C. L. Rev. 379 (2008)

Christoph Gyo, Legitimacy of Captive Audiences in Germany , 29 Comp. Lab. L. & Pol'y J. 119 (2008)

Melvin Haas, et alia, Labor and Employment Law, 59 Mercer L. Rev. 233 (2007)

Vivian Hamilton, Will Marriage Promotion Work? 11 J. Gender Race & Just. 1 (2007)

Seth Harris, Law, Economics, and Accommodations in the Internal Labor Market, 10 U. Pa. J. Bus. & Emp. L. 1 (2007)

Andrew Hettinga, Note: Expanding NLRA Protection of Employee Organizational Blogs: Non-Discriminatory Access and the Forum-Based Disloyalty Exception, 82 Chi.Kent. L. Rev. 997 (2007)

Brian Hilverda, Comment: Protecting the Right to a Jury Trial: Idaho 's Response to Mandatory Arbitration Clauses in Adhesion Contracts, 44 Idaho L. Rev. 185 (2007)

Scott Hovanyetz, Comment: Non-Compete Agreements and the Equity Conflict: Applying Baker v. General Motors Through the Lens of History, 38 Seton Hall L. Rev. 253 (2008)

Kevin Hsu, Note: Masters and Servants in America: The Ineffectiveness of Current United States Anti-Trafficking Policy in Protecting Victims of Trafficking for the Purposes of Domestic Servitude, 14 Geo. J. on Poverty L. & Pol'y 489 (2007)

Nicole Kersey, Misplaced Opposition: Immigration Incentives of the Proposed Social Security Totalization Agreement with Mexico , 22 Geo. Immigr. L.J. 57 (2007)

Konrad Lee, "When Johnny Comes Marching Home Again" Will He Be Welcome at Work? 35 Pepp. L. Rev. 247 (2008)

Shawn McCormack, Note: Private Security Contractors in Iraq Violate Laws of War, 31 Suffolk Transnat'l L. Rev. 75 (2007)

Derek Marks, Comment: One for Twenty-five: The Federal Courts Reverse a Decision of the NFL's Disability Board for the First Time since 1993, 15 Vill. Sports & Ent. L.J. 1 (2008)

Scott Moss, Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts, 76 Fordham L. Rev. 981 (2007)

Yoanna Moisides, I Just Need Help: TANF, the Deficit Reduction Act, and the New "Work-Eligible Individual", 11 J. Gender Race & Just. 17 (2007)

Patricia Nemeth & Deborah Brouwer, Employment and Labor Law, 53 Wayne L. Rev. 223 (2007)

Hisashi Okuno, Captive Audience Speeches in Japan : Freedom of Speech of Employers v. Workers' Rights and Freedoms, 29 Comp. Lab. L. & Pol'y J. 129 (2008)

Barry Paisner & Michelle Haubert-Barela, Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees, 37 N.m. L. Rev. 357 (2007)

Kay Pranis, Healing and Accountability in the Criminal Justice System: Applying Restorative Justice Processes in the Workplace, 8 Cardozo J. Conflict Resol. 659 (2007)

Nuria Pumar Beltran, Captive Audience Speech: Spanish Report, 29 Comp. Lab. L. & Pol'y J. 177 (2008)

Gautham Rao, The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America , 26 Law & Hist. Rev. 1 (2008)

Bernard Reams & Michael Forrest, Threading the Eye of the ERISA Needle: ERISA Preemption and Alternative Legal Schemes to Fill the Regulatory Vacuum, 39 St. Mary's L.J. 277 (2007)

Rhonda Reaves, Retaliatory Harassment: Sex and the Hostile Coworker as the Enforcer of Workplace Norms, 2007 Mich. St. L. Rev. 403

Paul Roth, Captive Audience Speech under New Zealand Law, 29 Comp. Lab. L. & Pol'y J. 147 (2008)

Michael Satz, Mandatory Binding Arbitration: Our Legal History Demands Balanced Reform, 44 Idaho L. Rev. 19 (2007)

Michael Scaperlanda, Reflections on Immigration Reform, the Workplace and the Family, 4 U. St. Thomas L.J. 508 (2007)

Elizabeth Schiltz, Workplace Restructuring to Accommodate Family Life, 4 U. St. Thomas L.J. 343 (2007)

Paul Secunda, Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, 29 Comp. Lab. L. & Pol'y J. 209 (2008)

Steven Seidenfeld, Note: Employer Liability under Title VII: Creating an Employer Affirmative Defense for Retaliation Claims, 29 Cardozo L. Rev. 1319 (2008)

Michael Selmi, The Work-Family Conflict: An Essay on Employers, Men and Responsibility, 4 U. St. Thomas L.J. 573 (2007)

Nurhan Sural, Captive Audience Speeches in the Labor-Management Setting in Turkey, 29 Comp. Lab. L. & Pol'y J. 191 (2008)

Symposium: Workplace Restructuring to Accommodate Family Life, 4 U. St. Thomas L.J. 343 (2007)

Symposium: Restorative Justice: Choosing Restoration over Retribution, 8 Cardozo J. Conflict Resol. 405 (2007)

Symposium. The Rehnquist Court in Empirical and Statistical Retrospective, 24 Const. Comment: 3 (2007)

Symposium: One Act, Ten Years, and Thousands of Families: Welfare Reform in Contemporary America , 11 J. Gender Race & Just. 1 - 65 (2007)

Eric Tucker, Shareholder and Director Liability for Unpaid Workers' Wages in Canada : from Condition of Granting Limited Liability to Exceptional Remedy, 26 Law & Hist. Rev. 57 (2008)

Julie Vanneman, Note: Procedural Fencing in Retiree Benefits Disputes: Applications of the First-Filed Rule in Federal Courts, 69 U. Pitt. L. Rev. 123 (2007)

J.W. Verret, Economics Makes Strange Bedfellows: Pensions, Trusts, and Hedge Funds in an Era of Financial Re-Intermediation, 10 U. Pa. J. Bus. & Emp. L. 63 (2007)

Aaron Walker, Comment: Title VII & MLB Minority Hiring: Alternatives to Litigation, 10 U. Pa. J. Bus. & Emp. L. 245 (2007)

Lavanga Wijekoon, Comment: Litigating Labor Rights Across a Demilitarized Zone: The South Korean Constitutional Court as a Forum to Address Labor Violations in North Korea's Kaesong Special Economic Zone, 17 Pac. Rim L. & Pol'y J. 265 (2008)

Joan Williams, The Politics of Time in the Legal Profession. 4 U. St. Thomas L.J. 379 (2007)

Future Newsletters
 

The LERA LEL Section Newsletter, Labor and the Law, is available each month
via the LERA email listserv and on the LERA website.
Back issues of of LEL and LERA newsletters can be accessed at the Newsletters Index.

To subscribe to the LERA email listserv,
go to the LERA website and click on "Listervs" and follow the instructions.
 

The LEL News may be reposted but only if it includes the copyright notice,
the entire document or unaltered sections of the document, and the source.

Copyright © Ellen Dannin 2008. All Rights Reserved.

LERA HOME | NEWSLETTERS INDEX