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Labor and Employment Law News - April 2011

The full text of many cases is now available free on-line. Where that is the case, links are provided.

Defamation Claims Against Public Figures

      The jury in this case found that the defendants had defamed the plaintiff, an elected township supervisor, by mailing to area residents a negative report from the plaintiff’s personnel file on her performance in a prior job. The plaintiff had never seen the report before the defendants distributed it. The plaintiff and defendants were political adversaries. The jury found that the defendants owed the plaintiff damages and a public apology. The appellate court, however, dismissed the case because it found that, although the defendants had defamed the plaintiff, they had not acted with “actual malice”. Smith v. Anonymous Joint Enterprise, Case No.275297 (Mich. Ct. App. Mar. 3, 2011).
http://www.michbar.org/opinions/appeals/2011/030311/48287.pdf

      The decision discusses a number of issues that affect defamation claims (libel or slander)  by public figures. Libel is a statement (1) concerning a “plaintiff (2) which is false in some material respect and (3) which is communicated to a third person by written or printed words and (4) has a tendency to harm the plaintiff’s reputation.  In addition, a plaintiff who is a public figure must also prove by clear and convincing evidence that the statement was made with “actual malice”. Otherwise, the public’s rights to speak freely about matters of public concern and to express opinions would be violated.

      In this case, the plaintiff was unable to meet that burden of proof, because the statements were opinion. This was the case even though the statements about her were based on assumptions, hearsay, and information that was not correct. The decision also discusses several related issues.

Weingarten Rights, Jefferson Standard, Information Requests

      A recent NLRB case, which was among the two-person Board decisions the Supreme Court remanded for a new decision, includes holdings on several interesting issues, three of which are described here. Hawaii Tribune-Herald, 356 NLRB No. 63 (Feb. 14, 2011).
http://mynlrb.nlrb.gov/link/document.aspx/09031d458044566d

      First, the employer disciplined and fired an employee for secretly recording what the employee feared would be a disciplinary meeting. The employer had denied the employee the right to have a union representative at the meeting, a potential violation of her Weingarten rights. The employee’s union representative told him to take notes at the meeting, but his fellow workers agreed that he should record the meeting instead. The Board majority held that the employee’s conduct, which was taken in concert with fellow employees, was legally protected activity. In addition, it was not so egregious as to lose protection, given that neither the employer’s rules nor the state’s laws forbade recording conversations. (Note that state laws vary widely on this issue.)

      The decision also discusses whether comments criticizing the quality of the employer’s news service made by the discharged employee were misconduct so serious that it removed his right to reinstatement and backpay. In this case, because the disparagement came after the illegal discharge it occurred when the employee no longer owed a duty of loyalty to his employer. As a result, it differed from the Jefferson Standard case on employee disparagement of their employer’s product. The Board noted that “employees who are unlawfully fired . . . often say unkind things about their former employers. [A]n ‘evaluation of postdischarge employee misconduct requires sympathetic recognition of the fact that it is wholly natural for an employee to react with some vehemence to an unlawful discharge.’ Employers who break the law should not be permitted to escape fully remedying the effects of their unlawful actions based on the victims’ natural human reactions to the unlawful acts.” The Board said the appropriate standard articulated here was from O’Daniel Oldsmobile, Inc., 179 NLRB 398 (1969): Was the misconduct so flagrant as to render the employee unfit for further service or cause a threat to efficiency.

      The decision also severed consideration of employer obligations to provide witness statements and attorney work product from the case for separate consideration. The Board has solicited briefs on these issues.
http://nlrb.gov/sites/leraweb.org/files/documents/236/stephensmediainvite.pdf

Wearing Pro-Union Apparel at Work

      A recent NLRB case raised several issues on employee rights to wear pro-union apparel at work. The Board said, “It is well established that, absent special circumstances, it is unlawful for employers to prohibit employees from wearing union insignia. See Republic Aviation Corp., 324 U.S. 793, 801–803 (1945). Because no special circumstances have been established here, we find that the Respondent's conduct violated Section 8(a)(1).” The case also discusses violations that arose from the employer’s new rule forbidding wearing union insignia and refusal to hire a pro-union applicant.  Titus Electric Contracting,  355 NLRB No.222 (Sept. 30, 2010) http://mynlrb.nlrb.gov/link/document.aspx/09031d45803b42bd

Lockouts

      Among the recent two-member NLRB cases is a brief decision that summarizes key points concerning lockouts and partial lockouts. Wayneview Care Center, 356 NLRB No.30 (Nov. 18, 2010)

Web Links

Recent Labor and Employment Law Articles

  • Wayne Batchis, Privatized Government in a Diverse Urban Neighborhood: Mt. Airy Business Improvement District, 3 Drexel L. Rev. 109 (2010)
  • Michael Bagley & Benson Ward, Worker's Compensation, 62 Mercer L. Rev. 383 (2010)
  • Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.l. & Feminism 343 (2010)
  • Emily Carson, Note: Off the Record: Why the Eeoc Should Change its Guidelines Regarding Employers' Consideration of Employees' Criminal Records During the Hiring Process, 36 J. Corp. L. 221 (2010)
  • Ellen Dannin, Crumbling Infrastructure - Crumbling Democracy: Infrastructure Privatization Contracts and Their Effects on State and Local Governance, 6 Nw J. L. & Soc. Pol’y 47 (2011)
  • Jill Fraley, The Government Contractor Defense and Superior Orders in International Human Rights Law, 4 Fla. A&m U. L. Rev. 43 (2008/2009)
  • Emily Gibbs, Comment:  Free Movement of Labor in North America: Using the European Union as a Model for the Creation of North American Citizenship, 45 U.S.F.L. Rev. 265 (2010)
  • Melvin Haas, et alia, Labor and Employment Law. 62 Mercer L. Rev. 181 (2010)
  • Sami Hasan, Comment: Veiling Religion in the Force: the Validity of "Religion-Neutral Appearance" as an Employer Interest. 9 UCLA J. Islamic & Near E.L. 87 (2009-2010)
  • Miryam Hazan, Sustainable Jobs and Emigration: Drawing Mexico's Responsibility in Immigration Reform, 16 Law & Bus. Rev. Am. 697 (2010)
  • Stacy Hickox, Ensuring Enforceability and Fairness in the Arbitration of Employment Disputes, 16 Widener L. Rev. 101 (2010)
  • Jeffrey Hirsch, Revolution in Pragmatist Clothing: Nationalizing Workplace Law, 61 Ala. L. Rev. 1025 (2010)
  • Cody Jacobs, Note: Trade We Can Believe In: Renegotiating NAFTA's Labor Provisions to Create More Equitable Growth in North America, 17 Geo. J. on Poverty L. & Pol'y 127 (2010)
  • Sue Landsittel, Comment: Strange Bedfellows? Sex, Religion, and Transgender Identity under Title VII, 104 Nw. U. L. Rev. 1147 (2010)
  • Jana Luttenegger, Note: Smartphones: Increasing Productivity, Creating Overtime Liability, 36 J. Corp. L. 259 (2010)
  • Tayyab Mahmud, "Surplus Humanity" and the Margins of Legality: Slums, Slumdogs, and Accumulation by Dispossession, 14 Chapman L. Rev. 1 (2010)
  • Gene Nichol, The Roberts Court and Access to Justice, 59 Case W. Res. L. Rev. 821 (2009)
  • Evan Nolan, Note:  Picking up after the Baby Boomers: Can Immigrants Carry the Load? 24 Geo. Immigr. L.J. 77 (2009)
  • Pia Orrenius, et alia, Do Remittances Boost Economic Development? Evidence from Mexican States, 16 Law & Bus. Rev. Am. 803 (2010)
  • Stephen Plass, Private Dispute Resolution and the Future of Institutional Workplace Discrimination, 54 How. L.J. 45 (2010)
  • Alta Ray, Note: The Blame Game: Family and Medical Leave Act Violations and Individual Liability in the Public and Private Sectors, 54 How. L.J. 219 (2010)
  • Benjamin Sachs, Reinhardt at Work, 120 Yale L.J. 573 (2010)
  • Jasmin Sethi, Lessons for Social Scientists and Politicians: An Analysis of Welfare Reform, 17 Geo. J. on Poverty L. & Pol'y 5 (2010)
  • Meredith Stewart, Note: Outrage in the Workplace: Using the Tort of Intentional Infliction of Emotional Distress to Combat Employer Abuse of Immigrant Workers, 41 U. Mem. L. Rev. 187 (2010)
  • Symposium: Business Improvement Districts and the Evolution of Urban Governance, 3 Drexel L. Rev. 1 (2010)
  • Jaime Walter, Comment: Congressional Preemption of Work-Authorization Verification Laws: A Narrower Approach to Defining the Scope of Preemption, 45 U.S.F.L. Rev. 289 (2010)
  • Sara Witt, Note: The Status of Graduate Students and That of Medical Residents under the National Labor Relations Act as a Starting Point for Crafting a Statutory Definition of "Employee", 59 Case W. Res. L. Rev. 1221 (2009)
  • Amanda Yoder, Note: Resurrection of a Dead Remedy: Bringing Common Law Negligence Back into Employment Law, 75 Mo. L. Rev. 1093 (2010)

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To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at:
Ellen Dannin, Professor of Law
Pennsylvania State University
Dickinson School of Law
327 Katz Building
University Park, PA 16802-1912

The LERA LEL Section Newsletter, Labor and the Law, is available each month
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