Labor and Employment Law News - August 2010

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL)© 2010

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

Contract or State Law? Independent Contractor or Employee?
A recent case shows that trying to avoid the costs of litigation can be expensive. The employer’s drivers sued for unpaid overtime wages, business expenses, meal compensation, unlawful deductions, and statutory penalties under the California Labor Code. The employer argued that (1) the drivers had signed contracts saying they were independent contractors, so laws protecting employees did not protect them and (2) the drivers had agreed that all legal issues must be decided under Texas law. Had the drivers been independent contractors, they would not be entitled to employee protections under the California Labor Code. Here is a brief explanation why the employer did not win and why this strategy is unlikely to succeed. Narayan v. EGL Inc., Case No.07-16487 (9th Cir. July 13, 2010) http://www.ca9.uscourts.gov/datastore/opinions/2010/07/13/07-16487.pdf

First, the court found that Texas law says "choice of law" agreements can only apply to the terms of a contract. In other words, the drivers’ claims for protection by the California Labor Code must be decided under California law, including the question whether the drivers were employees or independent contractors. It said that how the parties label their relationship does not control, "‘and subterfuges are not countenanced.’" Deciding whether the drivers were employees required weighing evidence about their relationship with the company. The court also said that laws to protect workers are designed to defeat rather than enforce contracts. In short, the employer and drivers could not contract out of labor and employment law.

Legal Protections for Workers Joining the Military
A recent Utah case involves Title VII religious discrimination, Uniformed Services Employment and Reemployment Rights Act (USERRA), wrongful termination in violation of public policy under state law, and intentional infliction of emotional distress claims by a store manager who said he was fired because he had decided to join the Naval Reserve. His supervisor told him "that military service would interfere with Thomas’s job and would rob his family ‘of blessings from God’ because it would necessitate working on Sunday." Thomas v. Oreck Vacuums, Case No.2:09-00737 (D. Utah June 30, 2010)
https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?2009cv0737-47

The wars in Iraq and Afghanistan in particular have made USERRA protections increasingly important. In its decision, the court says, "The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from firing anyone because they serve, or have applied to serve, in the federal armed forces. It applies to individuals who apply to join the armed forces, as well as those actually serving. In evaluating a USERRA claim, the appropriate test is whether military service was "a substantial or motivating factor" in employment discrimination. This is true even if there were also legitimate bases for the action, unless the employer can show that it would have taken the action regardless of the employee’s military status." If the case is not settled, this and other claims will be decided at trial.

Man’s Best Drug-Sniffing Friend and Dogged Requests for Overtime Pay
This case involves the proper rate of pay for a K-9 officer ordered to train, care for, and house a dog being trained to do narcotics detection. Logs showed that the officer spent 45 minutes to six hours a day on his days off and after his shifts training the dog. The officer’s superiors told him that all work involved with the dog outside his regularly scheduled work was to be "off the clock". He eventually learned that K-9 officers were entitled to pay for time spent working with their dogs, but when he asked to be paid, the sheriff briefly suspended the K-9 program, while leaving the dogs with their officer trainers. When the program was formally reinstated, requests for pay or other accommodations were ignored. Finally, after the officer told his superiors that he was considering suing for the unpaid time, he was demoted from K-9 officer to patrol officer at reduced pay. The decision provides a good overview of Fair Labor Standards Act (FLSA) requirements and remedies that affect employers in general. Lewallen v. Scott County, Case No.08-520 (E.D. Tenn. July, 13, 2010) http://docfiles.justia.com/cases/federal/district-courts/tennessee/tnedce/3:2008cv00520/52657/39/0.pdf

Here are two sources for more information on this issue.

U.S. Department of Labor, Wage and Hour Division (WHD) FLSA2006-10, March 10, 2006
http://www.dol.gov/whd/opinion/FLSA/2006/2006_03_10_10_FLSA.pdf

Terry Fleck, FLSA (Fair Labor Standards Act) and the K-9 Handler http://www.policek9.com/Fleck/FLSA%20Article.pdf

Patients’ Racial Preferences and Title VII
The decision in this case begins: "This case pits a health-care worker's right to a non-discriminatory workplace against a patient's demand for white-only health-care providers. Plainfield Healthcare Center is a nursing home that housed a resident who did not want assistance from black certified nursing assistants. Plainfield complied with this racial preference by telling Brenda Chaney, a black nursing assistant, in writing everyday that "no black" assistants should enter this resident's room or provide her with care." Eventually the nursing assistant was fired. Chaney v. Plainfield Healthcare Center, Case No.09-3661(7th Cir. July 20, 2010)
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=09-3661_002.pdf

As the case explains, an employer violates Title VII when it creates (1) a work environment that is subjectively and objectively offensive; (2) when the actions are based on membership in a protected class, such as race; (3) when the conduct is severe or pervasive; and (4) when an employer’s liability for the conduct is shown.

The nursing home argued that rights to privacy that make it legal to have same-sex restrooms and dressing rooms should apply to race. However, the court said, "The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race. Just as the law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex heath providers, but not same-race providers." The judges concluded that this order created an illegal hostile work environment: "It is now widely accepted that a company's desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race."

The employer also argued that it was complying with state and federal patients rights and care regulations. The court found that federal law preempted conflicting state laws and, in addition, the employer had misconstrued those regulations. It also found that by ordering the nursing assistant not to care for residents had put residents’ life and health in danger on several occasions when no one else was in the vicinity. "Had a resident sued Plainfield under the patient's rights provision, Title VII would have supplied an affirmative defense. Title VII does not, by contrast, contain a good-faith "defense" that allows an employer to ignore the statute in favor of conflicting state law." 

Web Links

Presidential Memorandum, The Presidential POWER Initiative: Protecting Our Workers and Ensuring Reemployment July 19, 2010 http://www.whitehouse.gov/the-press-office/presidential-memorandum-presidential-power-initiative-protecting-our-workers-and-en

Presidential Memorandum, To the Secretary of Health and Human Services Regarding H.R. 3962, Providing Stability and Security for Medicare Reimbursements June 25, 2010 http://www.whitehouse.gov/the-press-office/memorandum-president-secretary-health-and-human-services-regarding-hr-3962

Department of Labor, Wage and Hour Division (WHD), Fact Sheets — Numeric Index http://www.dol.gov/whd/regs/compliance/whdcomp.htm

Department of Labor, Wage and Hour Division (WHD), Fact Sheet #73: Break Time for Nursing Mothers under the FLSA (July 2010) http://www.dol.gov/whd/regs/compliance/whdfs73.htm

Department of Labor, Wage and Hour Division (WHD), Fact Sheet # 75: Youth Peddling under the Federal Child Labor Provisions of Fair Labor Standards Act (FLSA) (July 2010) http://www.dol.gov/whd/regs/compliance/whdfs75.htm

Department of Labor, Office of Federal Contract Compliance Programs, 41 CFR Part 60–741 - RIN 1250–AA02 Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Affirmative Action Provisions Under Section 503 of the Rehabilitation Act, as Amended http://edocket.access.gpo.gov/2010/pdf/2010-18104.pdf

OSHA Publications http://www.osha.gov/pls/publications/publication.html

OSHA Standard Interpretations http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=INTERPRETATIONS&p_toc_level=2&p_keyvalue=DATE_2010&p_status=CURRENT

OSHA What's New - Last 30 Days http://www.osha.gov/whatsnew.html

Health, Employment, Labor, and Pensions Committee Hearing on H.R. 5663, Miner Safety and Health Act of 2010, July 13, 2010 2175, including links to witness testimony and video http://edlabor.house.gov/blog/2010/07/miner-safety-and-health-act-of.shtml http://edlabor.house.gov/hearings/labor/worker-safety-and-health/

Text of the draft Miner Safety and Health Act of 2010 H.R. 5663 http://edlabor.house.gov/documents/111/pdf/legislation/MinerSafetyandHealthActof2010.pdf

House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Hearing on: Americans with Disabilities Act at 20 – Celebrating Our Progress, Affirming Our Commitment, July 22, 2010
http://www.judiciary.house.gov/hearings/hear_100722.html

House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Hearing on the Ethical Imperative for Reform of our Immigration System July 14, 2010 http://www.judiciary.house.gov/hearings/hear_100714.html

House Health, Employment, Labor, and Pensions Subcommittee Hearing, Creating Greater Accounting Transparency for Pensioners, July 20, 2010 http://edlabor.house.gov/hearings/labor/retirement-and-pensions/

House Committee on Oversight and Government Reform, Federal Workforce, Postal Service and the District of Columbia Subcommittee, Temporary Employee Practices: How Long Does Temporary Last? June 30, 2010
http://oversight.house.gov/index.php?option=com_content&view=article&id=5003:temporary-employee-practices-how-long-does-temporary-last&catid=54:hearings&Itemid=27

House Committee on Oversight and Government Reform, Federal Workforce, Postal Service and the District of Columbia Subcommittee, Are Agencies Playing It Safe and Secure: An Examination of Worker Protections Pre- and Post-Injury, July 21, 2010 http://oversight.house.gov/index.php?option=com_jcalpro&extmode=view&extid=190

Testimony of Mark Zandi, Chief Economist, Moody’s Analytics before the Senate Finance Committee, Using Unemployment Insurance to Help Americans Get Back to Work: Creating Opportunities and Overcoming Challenges, April 14, 2010
http://www.economy.com/mark-zandi/documents/Senate-Finance-Committee-Unemployment%20Insurance-041410.pdf

Charting a Path Forward: The Homeland Security Department's Quadrennial Homeland Security Review and Bottom-Up Review Bottom-Up Review, July 21, 2010 http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=66726e74-1f4e-4395-a5c4-8937437ef8bd

House Subcommittee on Social Security Hearing on Social Security at 75 years: More Necessary Now than Ever, July 15, 2010 http://waysandmeans.house.gov/Hearings/hearingDetails.aspx?NewsID=11257

Chairman Pomeroy Announces a Hearing on Social Security at 75 years: More Necessary Now than Ever, July 8, 2010 http://waysandmeans.house.gov/press/PRArticle.aspx?NewsID=11256

Economic Security Index (ESI), Economic Security at Risk: Findings from the Economic Security Index
http://economicsecurityindex.org/assets/Economic%20Security%20Index%20Full%20Report.pdf

Economic Security Index (ESI), The Economic Security Index: A New Measure of the Economic Security of American Works and Their Families http://economicsecurityindex.org/assets/Economic%20Security%20Index%20Technical%20Report.pdf

Australian Paid Parental Leave Bill 2010

As passed by Parliament
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr4347_aspassed%2F0001%22;rec=0

Links to bill's process through Parliament
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2FR4347%22;querytype=;rec=0

U.S. Government Accountability Office, Cybersecurity: Key Challenges Need to Be Addressed to Improve Research and Development GAO-10-466, June 3, 2010 http://www.gao.gov/new.items/d10466.pdf

U.S. Government Accountability Office, Hurricane Katrina: CMS and HRSA Assistance to Sustain Primary Care Gains in the Greater New Orleans Area GAO-10-773R, June 30, 2010 http://www.gao.gov/new.items/d10773r.pdf

U.S. Government Accountability Office, GAO Human Capital Reform Act of 2004: Final Report on GAO's Use of Provisions in the GAO Human Capital Reform Act of 2004 GAO-10-811SP, July 6, 2010 http://www.gao.gov/new.items/d10811sp.pdf

Government Accountability Office, Defense Acquisitions: DOD Needs to Develop Performance Criteria to Gauge Impact of Reform Act Changes and Address Workforce Issues GAO-10-774, July 29, 2010 http://www.gao.gov/new.items/d10774.pdf

Government Accountability Office, Department of Homeland Security: DHS Needs to Comprehensively Assess Its Foreign Language Needs and Capabilities and Identify Shortfalls GAO-10-714, June 22, 2010 http://www.gao.gov/new.items/d10714.pdf

Government Accountability Office, Highlights of a Forum: Actions that Could Increase Work Participation for Adults with Disabilities GAO-10-812SP, July 29, 2010 http://www.gao.gov/new.items/d10812sp.pdf

Government Accountability Office, Military Personnel: Enhanced Collaboration and Process Improvements Needed for Determining Military Treatment Facility Medical Personnel Requirements GAO-10-696, July 29, 2010 http://www.gao.gov/new.items/d10696.pdf

Government Accountability Office, Small Business Administration: Undercover Tests Show HUBZone Program Remains Vulnerable to Fraud and Abuse GAO-10-759, June 25, 2010 http://www.gao.gov/new.items/d10759.pdf

Government Accountability Office, Small Business Administration: Undercover Tests Show HUBZone Program Remains Vulnerable to Fraud and Abuse GAO-10-920T, July 28, 2010 http://www.gao.gov/new.items/d10920t.pdf

U.S. Government Accountability Office, GAO Strategic Plan 2010-2015 (Supersedes GAO-07-1SP) GAO-10-559SP, July 1, 2010 http://www.gao.gov/new.items/d10559sp.pdf

U.S. Government Accountability Office, Medicare Recovery Audit Contracting: Lessons Learned to Address Improper Payments and Improve Contractor Coordination and Oversight GAO-10-864T, July 15, 2010 http://www.gao.gov/new.items/d10864t.pdf

U.S. Government Accountability Office, Health Care Quality Measurement: The National Quality Forum Has Begun a 4-Year Contract with HHS GAO-10-737, July 14, 2010 http://www.gao.gov/new.items/d10737.pdf

U.S. Government Accountability Office, Alien Smuggling: DHS Could Better Address Alien Smuggling along the Southwest Border by Leveraging Investigative Resources and Measuring Program Performance GAO-10-919T, July 22, 2010 http://www.gao.gov/new.items/d10919t.pdf

U.S. Government Accountability Office, Alien Smuggling: DHS Needs to Better Leverage Investigative Resources and Measure Program Performance along the Southwest Border GAO-10-328, May 24, 2010 http://www.gao.gov/new.items/d10328.pdf

U.S. Government Accountability Office, Direct-To-Consumer Genetic Tests: Misleading Test Results Are Further Complicated by Deceptive Marketing and Other Questionable Practices GAO-10-847T, July 22, 2010 http://www.gao.gov/new.items/d10847t.pdf

U.S. Government Accountability Office, Defined Benefit Pension Plans: Plans Face Valuation and Other Challenges When Investing in Hedge Funds and Private Equity GAO-10-915T, July 20, 2010 http://www.gao.gov/new.items/d10915t.pdf

U.S. Government Accountability Office, Information Technology: OMB's Dashboard Has Increased Transparency and Oversight, but Improvements Needed GAO-10-701, July 16, 2010 http://www.gao.gov/new.items/d10701.pdf

U.S. Government Accountability Office, Recovery Act: Contracting Approaches and Oversight Used by Selected Federal Agencies and States GAO-10-809, July 15, 2010 http://www.gao.gov/new.items/d10809.pdf

U.S. Government Accountability Office, Troubled Asset Relief Program: Continued Attention Needed to Ensure the Transparency and Accountability of Ongoing Programs GAO-10-933T, July 21, 2010 http://www.gao.gov/new.items/d10933t.pdf

U.S. Government Accountability Office, Rural Homelessness: Better Collaboration by HHS and HUD Could Improve Delivery of Services in Rural Areas GAO-10-724, July 20, 2010 http://www.gao.gov/new.items/d10724.pdf

Policy Matters Ohio, All Aboard: Clean Energy Transportation Opportunities Favor Ohio Economy, July 2010 http://www.policymattersohio.org/pdf/AllAboard2010_0712.pdf.

OECD, Job Creation must Be a Top Priority in Months Ahead, with Country Notes Are Available for Australia; Canada; France; Germany; Ireland; Italy; Japan; Korea; Mexico; Spain; UK; US,
http://www.oecd.org/document/9/0,3343,en_21571361_44315115_45602953_1_1_1_1,00.html

OECD, Pension Fund Assets Struggle to Return to Pre-crisis Levels July 2010 http://www.oecd.org/dataoecd/46/46/45637367.pdf

OECD, Employment Outlook 2010: Moving Beyond the Jobs Crisis http://www.oecd.org/document/46/0,3343,en_2649_34747_40401454_1_1_1_1,00.html

Monthly Labor Review June 2010 http://www.bls.gov/opub/mlr/2010/06/home.htm

IRS Jobs Link http://www.jobs.irs.gov/

Federal Jobs Link http://www.usajobs.com/

Lucy P. Eldridge & Michael J. Harper, Effects of imported intermediate inputs on productivity, Monthly Labor Review, June 2010 http://www.bls.gov/opub/mlr/2010/06/art1full.pdf

Michael J. Harper, Bhavani Khandrika, Randal Kinoshita & Steven Rosenthal, Nonmanufacturing Industry Contributions to Multifactor Productivity, 1987–2006, Monthly Labor Review June 2010 http://www.bls.gov/opub/mlr/2010/06/art2full.pdf

Elizabeth Zamora & Jacob Kirchmer, Compensation Costs in Manufacturing Across Industries and Countries, 1975–2007, Monthly Labor Review June 2010 http://www.bls.gov/opub/mlr/2010/06/art3full.pdf

Department of Labor, Bureau of Labor Statistics, Spotlight on Statistics: Travel July 2010
http://www.bls.gov/spotlight/2010/travel/home.htm

Department of Labor, Bureau of Labor Statistics, Occupational Pay Comparisons Among Metropolitan Areas, 2009 July 22, 2010 http://www.bls.gov/news.release/ncspay.nr0.htm

EBRI Retirement Readiness Rating: Retirement Income Preparation and Future Prospects, Issue Brief #344, July 2010

Summary http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4593

Issue Brief http://www.ebri.org/pdf/briefspdf/EBRI_IB_07-2010_No344_RRR-RSPM.pdf

2010 Fast Facts Reports http://www.ebri.org/publications/facts/index.cfm?fa=fastFacts

International Labor Organisation, Offshoring and Working Conditions in Remote Work, Reference ILO/10/38, 12 July 2010 http://www.ilo.org/global/About_the_ILO/Media_and_public_information/Press_releases/lang--en/WCMS_142686/index.htm

National Women's Law Center, Getting Organized: Unionizing Home-Based Child Care Providers - 2010 Update http://www.nwlc.org/details.cfm?id=3897&section=childcare

Recent Labor and Employment Law Articles

Cynthia Bond, Laws of Race / Laws of Representation: The Construction of Race and Law in Contemporary American Film, 11 Tex. Rev. Ent. & Sports L. 219 (2010)

Michal Buchhandler-Raphael, Criminalizing Coerced Submission in the Workplace and in the Academy, 19 Colum. J. Gender & L. 409 (2010)

Nancy Byrd, The Dirty Side of Domestic Work: An Underground Economy and the Exploitation of Undocumented Workers, 3 Depaul J. for Soc. Just. 245 (2010)

Henry Chambers, The Wild West of Supreme Court Employment Discrimination Jurisprudence. 61 S.C. L. Rev. 577 (2010)

Sarah Coleman, Note: Enforcing International Framework Agreements in U.S. Courts: A Contract Analysis, 41 Colum. Hum. Rts. L. Rev. 601 (2010)

Roger Cotterrell, Conscientious Objection to Assigned Work Tasks: A Comment on Relations of Law and Culture, 31 Comp. Lab. L. & Pol'y J. 511 (2010)

Kirsten Davis, Extending the Vision: An Empowerment Identity Approach to Work-family Regulation as Applied to School Involvement Leave Statutes, 16 Wm. & Mary J. Women & L. 613 (2010)

Elizabeth Dondlinger, Note: United States v. International Longshoremen's Association: Analyzing the Civil RICO Suit and its Implications for the Future, 65 N.Y.U. Ann. Surv. Am. L. 795 (2010)

Renee-Claude Drouin, Promoting Fundamental Labor Rights Through International Framework Agreements: Practical Outcomes and Present Challenges, 31 Comp. Lab. L. & Pol'y J. 591 (2010)

Deborah Eisenberg, Shattering the Equal Pay Act's Glass Ceiling, 63 SMU L. Rev. 17 (2010)

Shiva Falsafi, Civil Society and Democracy in Japan, Iran, Iraq and Beyond. 43 Vand. J. Transnat'l L. 357 (2010)

Matthew Finkin, An Employee's Right Not to Obey Orders in the United States, 31 Comp. Lab. L. & Pol'y J. 497 (2010)

Robert Freilich & Neil Popowitz, The Umbrella of Sustainability: Smart Growth, New Urbanism, Renewable Energy and Green Development in the 21st Century, 42 Urb. Law. 1 (2010)

Anthony Galdieri, The Fluctuating Workweek: How it Works, How It's Treated, How It's Perceived, 8 Pierce L. Rev. 157 (2010)

Bennett Gershman, Privacy Revisited: GPS Tracking as Search and Seizure, 30 Pace L. Rev. 927 (2010)

Erin Gould, Comment: Read the Fine Print: A Critical Look at Oregon's Noncompete and Nonsolicitation Agreement Laws, 88 Or. L. Rev. 515 (2009)

Tadashi Hanami, Conscientious Objection in Japan, 31 Comp. Lab. L. & Pol'y J. 441 (2010)

Matthew Hard, Note: Caught in the Net: Athlete's Rights and the World Anti-Doping Agency, 19 S. Cal. Interdisc. L.J. 533 (2010)

Erin Hillstrom, Comment: May an Employer Require Employees to Wear "Genes" in the Workplace? An Exploration of Title Ii of the Genetic Information Nondiscrimination Act of 2008. 26 J. Marshall J. Computer & Info. L. 501 (2009)

Malvina Hryniewicz, Note: The Definition of "Major Life Activity" under Adams V. Rice Is Not "Substantially Limiting", 20 Geo. Mason U. Civ. Rts. L.J. 417 (2010)

Jordan Kaplan, Comment: Help Is on the Way: A Recent Case Sheds Light on Workplace Bullying, 47 Hous. L. Rev. 141 (2010)

Neil Katsuyama, Note: The Economics of Occupational Licensing: Applying Antitrust Economics to Distinguish Between Beneficial and Anticompetitive Professional Licenses, 19 S. Cal. Interdisc. L.J. 565 (2010)

Mary Kelly, Note: (Trans)forming Traditional Interpretations of Title VII: "Because of Sex" and the Transgender Dilemma, 17 Duke J. Gender L. & Pol'y 219 (2010)

Jisoo Kim, Comment: Confessions of a Whistleblower: The Need to Reform the Whistleblower Provision of the Sarbanes-Oxley Act, 43 J. Marshall L. Rev. 241 (2009)

Karen Kornbluh & Rachel Homer, The New Family Values Agenda: Renewing Our Social Contract, 4 Harv. L. & Pol'y Rev. 73 (2010)

Brian Langille, Imagining Post "Geneva Consensus" Labor Law for Post "Washington Consensus" Development, 31 Comp. Lab. L. & Pol'y J. 523 (2010)

Marvin Liang, Note: Quon v. Arch Wireless: The Ninth Circuit Correctly Assesses Fourth Amendment Privacy Interests in Workplace Text-Messaging, 12 SMU Sci. & Tech. L. Rev. 231 (2009)

John McDermott, Note: Direct v. Indirect Discrimination in European Football: The Legal Differences Between UEFA's Homegrown Player Rule and FIFA's "6+5" Proposal, 11 Tex. Rev. Ent. & Sports L. 267 (2010)

Patrick Madden, Comment: Artfully Discriminating: How Hall v. NALCO Co. Applies Title VII to Adverse Employment Actions Based on Assisted Reproduction Technologies, 28 Temp. J. Sci. Tech. & Envtl. L. 307 (2009)

Landon Magnusson, Note: Golden Gate and the Ninth Circuit's Threat to Erisa's Uniformity and Jurisprudence, 2010 BYU L. Rev. 167

Timothy Malloy, The Social Construction of Regulation: Lessons from the War Against Command and Control, 58 Buff. L. Rev. 267 (2010)

Frank Menetrez, Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010)

Daniel Mooney, Comment: Employer on the Web Wire: Balancing the Legal Pros and Cons of Online Employee Screening, 46 Idaho L. Rev. 733 (2010)

Gina Oderda, Note: Opposition at the Water Cooler: The Treatment of Non-Purposive Conduct under Title VII 's Anti-Retaliation Clause, 17 Duke J. Gender L. & Pol'y 241 (2010)

Angela Onwuachi-Willig, Complimentary Discrimination and Complimentary Discrimination in Faculty Hiring, 87 Wash. U. L. Rev. 763 (2010)

David Oppenheimer, California's Anti-discrimination Legislation, Proposition 14 and the Constitutional Protection of Minority Rights: The Fiftieth Anniversary of the California Fair Employment and Housing Act, 40 Golden Gate U. L. Rev. 117 (2010)

Pablo Ormachea & William Langer, Delivery of Legal Services to Immigrant Small Business Owners: The Problems and a Model to Solve Them, 3 Depaul J. for Soc. Just. 213 (2010)

Matthew Parlow, Professional Sports League Commissioners' Authority and Collective Bargaining, 11 Tex. Rev. Ent. & Sports L. 179 (2010)

Amir Paz-Fuchs, Objectionable Work in Israel. 31 Comp. Lab. L. & Pol'y J. 471 (2010)

Mark Perry & Rachel Brass, Rule 23(b)(2) Certification of Employment Class Actions: A Return to First Principles, 65 N.Y.U. Ann. Surv. Am. L. 681 (2010)

Elham Roohani, Note: Covenants Not to Compete in Nevada: A Proposal, 10 Nev. L.J. 260 (2009)

Esther Sanchez, Conscientious Objection in the Workplace: Some Reflections Based on Spanish Jurisprudence, 31 Comp. Lab. L. & Pol'y J. 487 (2010)

Wayne Schiess, Advice for Drafting a New NFL Collective Bargaining Agreement, 11 Tex. Rev. Ent. & Sports L. 205 (2010)

Briana Seagriff, Note: Keep Your Lunch Money: Alleviating Workplace Bullying with Mediation, 25 Ohio St. J. on Disp. Resol. 575 (2010)

Jorge Luis Silva Mendez, Are Common Perceptions on Termination Cases in Mexico Supported by Empirical Data? 31 Comp. Lab. L. & Pol'y J. 571 (2010)

Benjamin Smith, Note: Transforming the Public Employee Speech Standard in Posey v. Lake Pend Oreille: More than Meets the Eye, 2010 BYU L. Rev. 285

Carson Sprott, Note: Competitive and Fair: The Case for Exporting Stronger Extraterritorial Labor and Employment Protection, 33 Hastings Int'l & Comp. L. Rev. 479 (2010)

Nicholas Strohmayer, Note: Drawing the Line: Niswander's Balance Between Employer Confidentiality Interests and Employee Title VII Anti-retaliation Rights, 95 Iowa L. Rev. 1037 (2010)

Jared Stueckle, Note: Title VII , Voluntary Compliance and Ricci: Rescuing Municipalities from a Legal 'Backdraft', 17 Duke J. Gender L. & Pol'y 259 (2010)

Jessi Swenson, Note: Realizing Ledbetter's Dream with DIY Sensibility, 21 Hastings Women's L.J. 357 (2010)

Symposium: The Implications of Expiring Collective Bargaining Agreements in the NFL and NBA, 11 Tex. Rev. Ent. & Sports L. 179 -217 (2010)

Symposium: Living in the Genetic Age: New Issues, New Challenges,3 St. Louis U. J. Health L. & Pol'y 1 (2009)

Symposium: Objectionable Work, 31 Comp. Lab. L. & Pol'y J. 441 (2010)

Monica Teixeira De Sousa, The Politics of Supplementing Failure under No Child Left Behind: How Both Left and Right Are Forcing Low-income Children to Choose Between a Deficient Education and Working Overtime, 10 Nev. L.J. 118 (2009)

Amanda Tessmer, Comment: Pharmacogenomics and the Genetic Nondiscrimination Act of 2008: Legislation Limitations and its Impact on Pgx Research and Clinical Opportunity, 3 St. Louis U. J. Health L. & Pol'y 153 (2009)

Anne Trebilcock, Putting the Record Straight about International Labor Standard Setting, 31 Comp. Lab. L. & Pol'y J. 553 (2010)

Hillary Valderrama, Comment: Is the ADAAA a "Quick Fix" or Are We out of the Frying Pan and into the Fire?: How Requiring Parties to Participate in the Interactive Process Can Effect Congressional Intent under the AdAA, 47 Hous. L. Rev. 175 (2010)

Laurie Vasichek, Genetic Discrimination in the Workplace: Lessons from the past and Concerns for the Future, 3 St. Louis U. J. Health L. & Pol'y 13 (2009)

Anders Walker, Diversity's Strange Career: Recovering the Racial Pluralism of Lewis F. Powell, Jr., 50 Santa Clara L. Rev. 647 (2010)

Rolf Wank, Objectionable Work in Germany, 31 Comp. Lab. L. & Pol'y J. 455 (2010)

Richard Wiener, et alia, Complainant Behavioral Tone, Ambivalent Sexism, and Perceptions of Sexual Harassment, 16 Psychol. Pub. Pol'y & L. 56 (2010)

Carrie Williamson, Note: Missouri's Section 287.865.5 Proof of Claim Filing Requirement: Are Injured Employees Getting a Fair Shake? 75 Mo. L. Rev. 271 (2010)

William Wines, Observations on Leadership: Moral and Otherwise, 43 J. Marshall L. Rev. 159 (2009)

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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
via the LERA email listserv and on the LERA website.

It is edited by Ellen Dannin, Fannie Weiss Distinguished Faculty Scholar and Professor of Law, Penn State.
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 most current issue of the LEL newsletter may be viewed via the LERA home page.
Back issues of LERA newsletters may be viewed at
 
The LEL News may be reposted but only if it includes the copyright notice,
and the entire document.
 
Copyright © Ellen Dannin 2010. All Rights Reserved.

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