Labor and Employment Law News - August 2011

Dissent, Disloyalty, Jefferson Standard, and Employee Speech
MasTec Advanced Technologies, 357 NLRB No.17 (July 21, 2011)
http://mynlrb.nlrb.gov/link/document.aspx/09031d458055523d

Section 1 of the National Labor Relations Act declares it to be the policy of the United States to protect “the exercise by workers of full freedom of association”, and § 7 protects the right of employees to engage in concerted activities (in the sense of acting in concert or together) for the purpose of mutual aid or protection”.

Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees who exercise their § 7 rights. In other words, the NLRA protects the right of employees to discuss and even complain about their working conditions. The 1953 Supreme Court decision in Jefferson Standard declared that employee comments to third parties disparaging their employer without disclosing that they are made as part of a labor dispute are not protected – and employees may be fired for making these sorts of comments.

A recent NLRB case unanimously finds that employee comments broadcast on a television news show were protected but reveals a dispute among the Board members about how or if Jefferson Standard applies .

The employees’ employer, MasTec, installed dish TV connections for DirecTV. DirecTV required MasTec to order its employees to persuade customers to install telephone connections, in addition to broadcast access. DirecTV cut the pay of MasTec employees who did not meet their quote of telephone connections and said it would fire those who failed to meet the quota for two consecutive months. MasTec supervisors told the employees to do whatever it takes to persuade customers to install telephone connections, including “making the connection without telling customers they were doing so or telling customers, falsely, that the receiver would not work without it.”

The employees contacted a local television reporter about the issue and were interviewed as a group while wearing their work uniforms. The interviews were included in an investigative report aired several times in varying formats.

DirecTV ordered MasTec not to send any of the technicians in the broadcast to install DirecTV products, and MasTec told those technicians that they were “terminated at-will”.

(Had this case not been covered by the NLRA, the employees’ statements might have been covered by state whistleblower protections for employees who speak out on a matter of public interest. Since the employees’ conduct was covered by the NLRA, that state right would probably be preempted.)

There are three opinions with differing views on Jefferson Standard’s application – one by Liebman and Hayes, with Becker concurring in the result but not its reasoning; one by Becker setting out his analysis; and one by Liebman commenting on Becker’s analysis.

The Liebman-Hayes decision assumes Jefferson Standard applies to the employees’ statements seeking support from third parties (the reporters and, through them, the general public) about an ongoing labor dispute. As a result, the legal standard they use is whether the employee statements were “so disloyal, reckless or maliciously untrue as to lose the Act's protection.” 

They conclude that the employee statements were clearly related to a dispute over their pay and that the statements were not maliciously untrue or so disloyal and reckless as to warrant removal of the Act's protection. In fact, they say, “for the most part, the statements were accurate representations of what the Respondents had instructed the technicians to tell customers.” In addition, the technicians only participated in the newscast only after repeated unsuccessful attempts to directly resolve their dispute with MasTec and DirecTV.  In addition, there was no evidence the employees intended to harm on MasTec or DirecTV or that they “acted recklessly without regard for the financial consequences to the Respondents’ businesses.” Rather their participation in the newscast “was protected concerted activity directly and expressly related to and in furtherance of an ongoing labor dispute.”

The remedy, which all Board members concurred in, was: (1) “MasTec violated Section 8(a)(1) by firing the employees and by maintaining illegal rules concerning confidentiality, solicitation, and distribution”; (2)  DirecTV violated 8(a)(1) by causing the MasTec employees to be fired”: and (3) MasTec must post Notices at all its locations nationwide, because the illegal rules were applied at all MasTec locations nationwide.

Member Becker concurred in the result but wrote separately to emphasize that, unlike the employees in Jefferson Standard, the employees’ statements here were “clearly concerted activity for mutual aid and protection” and protected because they were not “uttered with actual malice.”  In his view, rather than applying Jefferson Standard, these facts fall under Linn v. United Plant Guard Workers of America, Local 113, 383 U.S. 53 (1966). “That standard is consistent with Congress’ intent to protect concerted activity for mutual aid and protection even if the conduct – a strike, for example – inflicts economic injury on the employer.” As a result, he disagrees that there should be any analysis as to whether the employees’ statements were so disloyal as to lose the NLRA’s protection.

Member Liebman, in a brief concurrence, responded that perhaps the breadth of Jefferson Standard should be reconsidered, but in this case no party had requested the Board to take that action.

In a footnote to the majority opinion, Member Hayes says he would not join Member Becker in abandoning consideration of whether nondefamatory disparagement or disloyal remarks related to an ongoing labor dispute warrant forfeiture of the Act's protection.

Equitable and Common Law Remedies for Breach of Noncompete Agreements

A recent Ohio Court of Appeals case found that the employee defendants breached their noncompetition, nonsolicitation, and confidentiality agreements by joining a company, Excelas,  set up to directly compete with their former employer. The plaintiff employer also sued Excelas for intentional interference with contractual relations. .  Litigation Management, Inc. v. Bourgeois, 2011 Ohio 2794 (Ct. App. of Cuyahoga County, OH, June 9, 2011) http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-2794.pdf

This case has an interesting discussion on the roles of money damages and equity remedies, such as injunctions. In general, equitable remedies are only available if damages are not sufficient to remedy the harm. That rule is an artifact of the historical development and application of those remedies.

In this case, the former employer requested damages and a permanent injunction against operating the competing company under the Uniform Trade Secrets Act, and the trial court used the normal standard for injunctions, that the plaintiff would suffer irreparable harm and that damages would not provide sufficient compensation. The court refused to grant the injunction, because it found that the plaintiff had not shown it would suffer “irreparable” harm in this case because damages had been awarded and would compensate the employer for all its injuries.

The court of appeals, however, found that the trial court had applied the wrong analysis for injunctions in cases brought under the Uniform Trade Secrets Act. UTSA says that actual or threatened misappropriation of trade secrets may be enjoined. Under the UTSA standard , the trial court had erred because the damages only compensated for past harm to the plaintiff. A permanent injunction was needed to prevent the defendants from using information they had stolen from the plaintiff – and could use in the future – to compete unfairly, such as the plaintiff’s pricing strategies, client information, and other trade secrets.

The court of appeals decision explains the special role injunctions play as part of trade secrets law. Among other things, it says that both damages and injunctive relief were necessary in this trade secrets case, because, if the only recovery was damages, “the misappropriator can simply buy the stolen secret. But this remedy deprives the holder of misappropriated information of its intrinsic value – the secret itself.”

Web Links

American Society of Civil Engineers, Failure to Act: The Economic Impact of Current Investment Trends in Surface Transportation (2011) http://www.asce.org/uploadedFiles/Infrastructure/Report_Card/ASCE-FailureToActFinal.pdf

EBRI Notes, "Capping Tax-Preferred Retirement Contributions: Preliminary Evidence of the Impact of the National Commission on Fiscal Responsibility and Reform Recommendations," and "The Impact of the Recession on Employment-Based Health Benefits: The Case of Union Membership" July 2011 http://ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4849

EBRI Issue Brief, Employment-Based Health Benefits and Taxation: Implications of Efforts to Reduce the Deficit and National Debt July 2011 http://ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4846

Jun Peng & Ilana Boivie, Sensible Solutions: Lessons from Well-Funded Public Pensions: An Analysis of Six Plans that Weathered the Financial Storm (National Institute on Retirement Security) June 2011 http://www.nirsonline.org/storage/nirs/documents/Lessons%20Learned/final_june_29_report_lessonsfromwellfundedpublicpensions1.pdf
Powerpoint http://www.nirsonline.org/storage/nirs/documents/Lessons%20Learned/final_june_29_ppt_lessons_learned_media_ppt1.pdf

Rakesh Kochhar, Richard Fry and Paul Taylor, Wealth Gaps Rise to Record Highs Between Whites, Blacks, Hispanics - Twenty-to-One (Pew Research Center) July 26, 2011 http://pewsocialtrends.org/2011/07/26/wealth-gaps-rise-to-record-highs-between-whites-blacks-hispanics/
Full Report http://pewsocialtrends.org/files/2011/07/SDT-Wealth-Report_7-26-11_FINAL.pdf

MSHA Single Source Page, Performance Coal Company, Upper Big Branch Mine, Massey Energy Company http://www.msha.gov/PerformanceCoal/PerformanceCoal.asp

Kate Bronfenbrenner and Dorian Warren, The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence, Institute for Social and Economic Research and Policy at Columbia University, Working Paper No. 2011.01, June 2011 http://www.afscmeinfocenter.org/2011/06/the-empirical-case-for-streamlining-the-NLRB-certification-process-the-role-of-date-of-unfair-labor.htm

Ilana Boivie, Kelly Kenneally & Brian Perlman, Pensions and Retirement Security 2011: A Roadmap for Policymakers (National Institute on Retirement Security) March 2011 http://www.nirsonline.org/storage/nirs/documents/Public%20Opinion/final_report.pdf

Ilana Boivie, Issue Brief: Who Killed the Private Sector DB Plan?  (National Institute on Retirement Security) March 2011 http://www.nirsonline.org/storage/nirs/documents/Who%20Killed%20DBs/final-_who_killed_the_private_sector_db_plan.pdf

US Department of Labor, The Asian-American Labor Force in the Recovery http://www.dol.gov/_sec/media/reports/asianlaborforce/

Office of Management and Budget Office of Information and Regulatory Affairs, June 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities http://www.whitehouse.gov/sites/leraweb.org/files/omb/inforeg/2011_cb/2011_cba_report.pdf

Office of Management and Budget Office of Information and Regulatory Affairs, Peer Review and Public Comments on the 2011 Draft Report to Congress on the Costs and Benefits of Federal Regulations http://www.whitehouse.gov/omb/inforeg/2011_cb/comments

Occupational Safety and Health Administration (OSHA), The OSHA Recordkeeping Advisor http://www.dol.gov/elaws/OSHARecordkeeping.htm

U.S. Department of Labor, eLaws Assistance for Workers and Small Businesses http://www.dol.gov/elaws/

National Institute for Occupational Safety and Health (NIOSH), Emergency Responder  Health Monitoring and Surveillance Draft 1.2 http://www.cdc.gov/niosh/docket/review/docket223/pdfs/ERHMSDocumentDraft1_31.pdf

WorkLife Transitions to Total Worker Health™, National Institute for Occupational Safety and Health (NIOSH) http://www.cdc.gov/niosh/TWH/transition.html

Treasury Inspector General for Tax Administration (TIGTA), Direct Pay Build America Bond Compliance Check Program Has Yet to Result in Wide-Scale Examinations, Reference Number: 2011-11-053 June 3, 2011 http://www.treasury.gov/tigta/auditreports/2011reports/201111053fr.pdf

Six Key Facts on Women and Social Security, IWPR (June 2011) http://www.iwpr.org/publications/pubs/six-key-facts-on-women-and-social-security/at_download/file

Elaine Fultz, Pension Crediting for Caregivers: Policies in Finland, France, Germany, Sweden, the United Kingdom, Canada, and Japan , IWPR (June 2011) http://www.iwpr.org/publications/pubs/pension-crediting-for-caregivers-policies-in-finland-france-germany-sweden-the-united-kingdom-canada-and-japan/at_download/file

Heidi Hartmann & Jeffrey Hayes,  The Job Loss Tsunami of the Great Recession: Wave Recedes for Men, Not for Women, IWPR  (July 2011) http://www.iwpr.org/publications/pubs/the-job-loss-tsunami-of-the-great-recession-wave-recedes-for-men-not-for-women/at_download/file

Jeffrey Hayes, Monthly Number of Women and Men on Payrolls (Seasonally Adjusted), December 2007- June 2011, IWPR  (July 2011) http://www.iwpr.org/publications/pubs/monthly-number-of-women-and-men-on-payrolls-seasonally-adjusted-december-2007-june-2011/at_download/file

Kevin Miller, Robert Drago, & Claudia Williams, Paid Sick Days and Employer Penalties for Absence, IWPR  (July 2011) http://www.iwpr.org/publications/pubs/paid-sick-days-and-employer-penalties-for-absence/at_download/file

Monthly Labor Review  June 2011, Vol. 134, No. 6 http://stats.bls.gov/opub/mlr/2011/06/home.htm#Articles

Dina Itkin and Laurie Salmon, How occupational employment is affected by mass layoffs, Monthly Labor Review http://stats.bls.gov/opub/mlr/2011/06/art1full.pdf

Kevin E. Cahill, Michael D. Giandrea, and Joseph F. Quinn, Reentering the labor force after retirement, Monthly Labor Review http://stats.bls.gov/opub/mlr/2011/06/art2full.pdf

John P. Robinson, Steven Martin, Ignace Glorieux, and Joeri Minnen, The overestimated workweek revisited, Monthly Labor Review http://stats.bls.gov/opub/mlr/2011/06/art3full.pdf

John Logan, Erin Johansson, and Ryan Lamare,New Data: NLRB Process Fails to Ensure a Fair Vote June 2011 http://laborcenter.berkeley.edu/laborlaw/NLRB_Process_June2011.pdf

BLS Occupational Outlook Quarterly, Spring 2011 http://www.bls.gov/opub/ooq/

Dennis Vilorio, Focused jobseeking: A measured approach to looking for work, BLS Occupational Outlook Quarterly, Spring 2011 http://www.bls.gov/opub/ooq/2011/spring/art01.pdf

John Mullins, Consulting careers: A profile of three occupations, BLS Occupational Outlook Quarterly, Spring 2011 http://www.bls.gov/opub/ooq/2011/spring/art02.pdf

Elka Maria Torpey, Nursing jobs in nursing homes, BLS Occupational Outlook Quarterly, Spring 2011 http://www.bls.gov/opub/ooq/2011/spring/art03.pdf

Government Accountability Office, Climate Change Adaptation: Aligning Funding with Strategic Priorities  GAO-11-876T, Jul 28, 2011 http://www.gao.gov/new.items/d11876t.pdf

Government Accountability Office, Army and Marine Corps Training: Metrics Needed to Assess Initiatives on Training Management Skills    GAO-11-673, Jul 28, 2011 http://www.gao.gov/new.items/d11673.pdf

Government Accountability Office, Defense Logistics: DOD Needs to Take Additional Actions to Address Challenges in Supply Chain Management    GAO-11-569, Jul 28, 2011 http://www.gao.gov/new.items/d11569.pdf

Government Accountability Office, DOD Financial Management: Numerous Challenges Must Be Addressed to Achieve Auditability    GAO-11-864T, Jul 28, 2011 http://www.gao.gov/new.items/d11864t.pdf

Government Accountability Office, Improper Payments: Reported Medicare Estimates and Key Remediation Strategies    GAO-11-842T, Jul 28, 2011 http://www.gao.gov/new.items/d11842t.pdf

Government Accountability Office, Information Technology: DHS Needs to Improve Its Independent Acquisition Reviews    GAO-11-581, Jul 28, 2011 http://www.gao.gov/new.items/d11581.pdf

Government Accountability Office, Service-Disabled Veteran-Owned Small Business Program: Preliminary Information on Actions Taken by Agencies to Address Fraud and Abuse and Remaining Vulnerabilities   GAO-11-589T, Jul 28, 2011 http://www.gao.gov/new.items/d11589t.pdf

Government Accountability Office, Social Media: Federal Agencies Need Policies and Procedures for Managing and Protecting Information They Access and Disseminate    GAO-11-605, Jun 28, 2011 http://www.gao.gov/new.items/d11605.pdf

Government Accountability Office, Department of Veterans Affairs: Issues Related to Real Property Realignment and Future Health Care Costs   GAO-11-877T, Jul 27, 2011 http://www.gao.gov/new.items/d11877t.pdf

Government Accountability Office, Disability Insurance: SSA Can Improve Efforts to Detect, Prevent, and Recover Overpayments   GAO-11-724, Jul 27, 2011 http://www.gao.gov/new.items/d11724.pdf

Government Accountability Office, Economic Development: Efficiency and Effectiveness of Fragmented Programs Are Unclear   GAO-11-872T, Jul 27, 2011 http://www.gao.gov/new.items/d11872t.pdf

Government Accountability Office, Cybersecurity: Continued Attention Needed to Protect Our Nation's Critical Infrastructure    GAO-11-865T, Jul 26, 2011 http://www.gao.gov/new.items/d11865t.pdf

Government Accountability Office, Federal Workers' Compensation: Questions to Consider in Changing Benefits for Older Beneficiaries   GAO-11-854T, Jul 26, 2011 http://www.gao.gov/new.items/d11854t.pdf

Government Accountability Office, School Improvement Grants: Early Implementation Under Way, but Reforms Affected by Short Time Frames GAO-11-741, Jul 25, 2011 http://www.gao.gov/cgi-bin/ordtab.pl?Item0=GAO-11-741

Government Accountability Office, Value in Health Care: Key Information for Policymakers to Assess Efforts to Improve Quality While Reducing Costs  GAO-11-445, Jul 26, 2011 http://www.gao.gov/cgi-bin/ordtab.pl?Item0=GAO-11-445

Government Accountability Office, Criminal Cartel Enforcement: Stakeholder Views on Impact of 2004 Antitrust Reform Are Mixed, but Support Whistleblower Protection  GAO-11-619, Jul 25, 2011 http://www.gao.gov/new.items/d11619.pdf

Government Accountability Office, Emergency Preparedness: Agencies Need Coordinated Guidance on Incorporating Telework into Emergency and Continuity Planning   GAO-11-628, Jul 22, 2011 http://www.gao.gov/new.items/d11628.pdf

Government Accountability Office, Medicare Part D: Changes in Utilization Similar for Randomly Reassigned and Other Low-Income Subsidy Beneficiaries  GAO-11-546R, Jun 22, 2011 http://www.gao.gov/new.items/d11546r.pdf

Government Accountability Office, Troubled Asset Relief Program: The Government's Exposure to AIG Following the Company's Recapitalization GAO-11-716, Jul 18, 2011 http://www.gao.gov/new.items/d11716.pdf

Government Accountability Office, World Trade Center Health Program: Administrator's Plans for Evaluating Clinics' Capabilities to Provide Required Data  GAO-11-793R, Jul 15, 2011 http://www.gao.gov/new.items/d11793r.pdf

Government Accountability Office, Abandoned Mines: Information on the Number of Hardrock Mines, Cost of Cleanup, and Value of Financial Assurances  GAO-11-834T, Jul 14, 2011 http://www.gao.gov/new.items/d11834t.pdf

Government Accountability Office, Social Security Statements: Observations on SSA's Plans for the Social Security Statement   GAO-11-787T, Jul 8, 2011 http://www.gao.gov/new.items/d11787t.pdf

Government Accountability Office, Department of Commerce: Office of Manufacturing and Services Could Better Measure and Communicate Its Contributions to Trade Policy   GAO-11-583, Jun 7, 2011 http://www.gao.gov/new.items/d11583.pdf

Government Accountability Office, A New Retrofit Industry: An analysis of the job creation potential of tax incentives for energy efficiency in commercial buildings and other components of the Better Buildings Initiative  June 13, 2011 http://www.usgbc.org/ShowFile.aspx?DocumentID=9531

Government Accountability Office, DOD Civilian Personnel: Competency Gap Analyses and Other Actions Needed to Enhance DOD's Strategic Workforce Plans    GAO-11-827T, Jul 14, 2011 http://www.gao.gov/new.items/d11827t.pdf

Government Accountability Office, EPA Health Risk Assessments: Sustained Management and Oversight Key to Overcoming Challenges  GAO-11-824T, Jul 14, 2011 http://www.gao.gov/new.items/d11824t.pdf

Government Accountability Office, Patient Protection and Affordable Care Act: Contracts Awarded and Consultants Retained by Federal Departments and Agencies to Assist in Implementing the Act   GAO-11-797R, Jul 14, 2011

Government Accountability Office, Domestic Violence, Sexual Assault, Dating Violence, and Stalking: National Data Collection Efforts Underway to Address Some Information Gaps   GAO-11-833T, Jul 13, 2011 http://www.gao.gov/new.items/d11833t.pdf

Government Accountability Office, Fraud Detection Systems: Additional Actions Needed to Support Program Integrity Efforts at Centers for Medicare and Medicaid Services   GAO-11-822T, Jul 12, 2011 http://www.gao.gov/new.items/d11822t.pdf

Government Accountability Office, Fraud Detection Systems: Centers for Medicare and Medicaid Services Needs to Ensure More Widespread Use   GAO-11-475, Jun 30, 2011 http://www.gao.gov/new.items/d11475.pdf

Government Accountability Office, Race to the Top: Reform Efforts Are Under Way and Information Sharing Could Be Improved   GAO-11-658, Jun 30, 2011 http://www.gao.gov/new.items/d11658.pdf

Government Accountability Office, Retirement Income: Ensuring Income throughout Retirement Requires Difficult Choices   GAO-11-400, Jun 7, 2011 http://www.gao.gov/new.items/d11400.pdf

U.S. Equal Employment Opportunity Commission, ADA & GINA: Confidentiality Requirements May 31, 2011 http://www.eeoc.gov/eeoc/foia/letters/2011/ada_gina_confidentrequre.html

EEOC, Commission to Examine Arrest and Conviction Records as a Hiring Barrier 7-20-11 http://www.eeoc.gov/eeoc/newsroom/release/7-20-11.cfm

National Treasury Employees Union, Federal Employees . . . They Work for US http://theyworkforus.org/

Recent Labor and Employment Law Articles

Gordon Anderson, Good Faith and the Individual Employment Relationship in New Zealand 32 Comp. Lab. L. & Pol'y J. 685 (2011)

Gregory Ablavsky, Comment: Making Indians "White": The Judicial Abolition of Native Slavery in Revolutionary Virginia and its Racial Legacy, 159 U. Pa. L. Rev. 1457 (2011)

Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU  L. Rev. 347 (2010)

Jeffrey Adams, Note:  The Assault of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration in America, 11 Pepp. Disp. Resol. L.J. 253 (2011)

David Adelsberg, Note: Did the MLBPA Strike Out? An Analysis of Union Liability in Major League Baseball's Anonymous 2003 Steroid Testing. 28 Cardozo Arts & Ent. L.J. 695 (2011)

Rachel Alexander, Bridging the Title VII Gap: Protecting All Workers from "Work Authorization" Discrimination, 10 U. Md. L.J. Race, Religion, Gender & Class 199 (2010)

Brooke Amos, Note: Atkins v. Virginia: Analyzing the Correct Standard and Examination Practices Used When Determining Mental Retardation, 14 J. Gender Race & Just. 469 (2011)

Natalie Bacon, Note: Unpaid Internships: The History, Policy, and Future Implications of "Fact Sheet #71", 6 Entrepren. Bus. L.J. 67 (2011)

Kevin Banks, Progress and Paradox: The Remarkable Yet Limited Advance of Employer Good Faith Duties in Canadian Common Law, 32 Comp. Lab. L. & Pol'y J. 547 (2011)

Jessica Bergman, Note: The Alien Tort Statute and Flomo V.  Firestone Natural Rubber Company: The Key to Change in Global Child Labor Practices? 18 Ind. J. Global Legal Stud. 455 (2011)

Roger Blanpain, Remembering Clyde Summers, 32 Comp. Lab. L. & Pol'y J. 493 (2011)

Alan Bogg, Good Faith in the Contract of Employment: A Case of the English Reserve? 32 Comp. Lab. L. & Pol'y J. 729 (2011)

Stuart Biegel, Unfinished Business: The Employment Non-discrimination Act (ENDA) and the K-12 Education Community, 14 N.Y.U. J. Legis. & Pub. Pol'y 357

Jesse Bland, Note: There Will Be Blood . . . Testing: The Intersection of Professional Sports and the Genetic Information Nondiscrimination Act of 2008, 13 Vand. J. Ent. & Tech. L. 357 (2011)

Matthew Bodie, Mandatory Disclosure on the Market for Union Representation, 5 FIU  L. Rev.  617 (2010)

Brandon Boulter, Note: Goldilocks and the Three-Judge Panel: Spencer v. World Vision, Inc. and the Religious Organization Exemption of Title VII, 2010 BYU  L. Rev.  33

James Brudney, Private Injuries, Public Policies: Adjusting the NLRB's Approach to Backpay Remedies, 5 FIU  L. Rev.  645 (2010)

James Brudney, Reluctance and Remorse: The Covenant of Good Faith and Fair Dealing in American Employment Law, 32 Comp. Lab. L. & Pol'y J. 773 (2011)

Thomas Brudney, Victims on Trial? A Backpay Case at the NLRB, 5 FIU  L. Rev.  465 (2010)

Neil Buchanan, What Kind of Environment Do We Owe Future Generations? 15 Lewis & Clark L. Rev.  339 (2011)

Regina Burch, Worldview Diversity in the Boardroom: A Law and Social Equity Rationale. 42 Loy. U. Chi. L.J. 585 (2011)

June Carbone, Unpacking Inequality and Class: Family, Gender and the Reconstruction of Class Barriers, 45 New Eng. L. Rev.  527 (2011)

June, Carbone, Cultural Conflict and the Revival of Class Welfare, 16 Wash. & Lee J. C.R. & Soc. Just. 369 (2010)

Brian Clarke, Grossly Restricted Pleading: Twombly / Iqbal, Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah L. Rev.  1101

Meghan Cooper, Comment: Reading Between the Lines: The Supreme Court's Textual Analysis of the ADEA, 45 New Eng. L. Rev.  753 (2011)

Lawton Callihan, Comment: Morgan v.  Family Dollar Stores, Inc.: District Court Discretion in Determining Whether Employees Are "Similarly Situated" Enough for Representative Testimony in FLSA Actions, 34 Am. J. Trial Advoc. 195 (2010)

Pat Chew,  Judges' Gender and Employment Discrimination Cases: Emerging Evidence-based Empirical Conclusions.], 14 J. Gender Race & Just. 359 (2011)

Caroline Cohen, Comment: California's Campaign for Paid Family Leave: A Model for Passing Federal Paid Leave, 41 Golden Gate U. L. Rev.  213 (2011)

Joel Cutcher-Gershenfeld, Bargaining When the Future of an Industry Is at Stake: Lessons from Uaw-ford Collective Bargaining Negotiations, 27 Negotiation J. 115 (2011)

Leah Donaldson, Female Legislators in the United States and Rhode Island, 16 Roger Williams U. L. Rev.  278 (2011)

Nancy Dowd, Essay: (Re)constructing the Framework of Work / Family, 16 Wash. & Lee J. C.r. & Soc. Just. 331 (2010)

Dave Ebersole, Note: Blowing the Whistle on the Dodd-Frank Whistleblower Provisions, 6 Entrepren. Bus. L.J. 123 (2011)

Samuel Estreicher, Improving the Administration of the National Labor Relations Act Without Statutory Change, 5 FIU  L. Rev.  361 (2010)

Matthew Finkin,  Clyde Summers: Disturber of the Legal Order, 32 Comp. Lab. L. & Pol'y J. 497 (2011)

Lauren Fisher, Note: A Miscarriage of Justice: Pregnancy Discrimination in Sectarian Schools, 16 Wash. & Lee J. C.R. & Soc. Just. 529 (2010)

Catherine Fisk, The Role of the Judiciary When the Agency Confirmation Process Stalls: Thoughts on the Two-member NLRB and the Questions the Supreme Court Should Have, but Didn't, Address in New Process Steel, L.P. v.  NLRB, 5 FIU  L. Rev.  593 (2010)

Robert Garda, The White Interest in School Integration. 63 Fla. L. Rev.  599 (2011)

Jacqueline Go, Comment: Another Move Away from Title VII: Why Gross Got it Right, 51 Santa Clara L. Rev. 1025 (2011)

Daniel Gordon, Gender, Race and Limiting the Constitutional Privilege of Religion as a Haven for Bias: The Bridge Back to the Twentieth Century, 31 Women's Rts. L. Rep. 369 (2010)

Thomas Greaney, Regulating to Promote Competition in Designing Health Insurance Exchanges, 20 Kan. J.L. & Pub. Pol'y 237 (2011)

Robert Gorman, The Legacy of Clyde W. Summers, 32 Comp. Lab. L. & Pol'y J. 501 (2011)

Wendy Greene, Black Women Can't Have Blonde Hair . . . In the Workplace, 14 J. Gender Race & Just. 405 (2011)

Michael Harper, Eliminating the Need for Caps on Title VII Damage Awards: The Shield of Kolstad v. American Dental Association, 14 N.Y.U. J. Legis. & Pub. Pol'y 477 (606)

Michael Harper, A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights, 5 FIU  L. Rev.  685 (2010)

Bob Hepple & Bruno Veneziani, Is Comparative Labor Law Simply about Engineering? 32 Comp. Lab. L. & Pol'y J. 835 (2011) 

Michael Hill, Comment: The Animal Enterprise Terrorism Act: The Need for a Whistleblower Exception, 61 Case W. Res. L. Rev.  651 (2010)

Jennifer Hill, Can Unions Use Worker Center Strategies?: in an Age of Doing More with Less, Unions Should Consider Thinking Locally but Acting Globally, 5 FIU  L. Rev.  551 (2010)

Jennifer Hill, et alia Comparing CEO Employment Contract Provisions: Differences Between Australia and the United States, 64 Vand. L. Rev.  559 (2011)

Jeffrey Hirsch, Defending the NLRB: Improving the Agency's Success in the Federal Courts of Appeals, 5 FIU  L. Rev.  437 (2010)

Sharona Hoffman,  The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483 (2011)

Tarry Hum,  Minority Banks in New York City: Is the Community Reinvestment Act Relevant? 25 J. Civ.  Rts. & Econ. Dev. 501 (2011)

Becky Jacobs, Volunteers: The Power of Community Mediation. 11 Nev.  L.J. 481 (2011)

Ryan Jaziri, Note: Fixing a Crack in the Wall of Separation: Why the Religion Clauses Preclude Adjudication of Sexual Harassment Claims Brought by Ministers, 45 New Eng. L. Rev.  719 (2011)

Pam Jenoff,  The Case for Candor: Application of the Self-Critical Analysis Privilege to Corporate Diversity Initiatives, 76 Brook. L. Rev.  569 (2011)

Samuel Jones,  The Invisible Man: The Conscious Neglect of Men and Boys in the War on Human Trafficking, 2010 Utah L. Rev.  1143

Sebastian . Krebber, "The Grand Duchy, Tucked Between Belgium, France and Germany...": Some Thoughts upon the Methodology of Bob Hepple and Bruno Veneziani, the Transformation of Labour Law in Europe, 32 Comp. Lab. L. & Pol'y J. 811 (2011)

Dimitrios Kremalis,  Good Faith in Greek Employment Law, 32 Comp. Lab. L. & Pol'y J. 631 (2011)

Jennifer Kappus, Note: Does Immunity Mean Impunity? The Legal and Political Battle of Household Workers Against Trafficking and Exploitation by Their Foreign Diplomat Employers, 61 Case W. Res. L. Rev.  269 (2010)

Adam Klarfeld, Minnesota Supreme Court Finds In-house Lawyer Not Protected by State Whistleblower Statute, but Could Be, 37 Wm. Mitchell L. Rev. 983 (2011)

Bryan Likins, Note: Determining the Appropriate Definition of Religion and Obligation to Accommodate the Religious Employee under Title VII: A Comparison of Religious Discrimination Protection in the United States and United Kingdom, 21 Ind. Int'l & Comp. L. Rev.  111 (2011)

Lee Linderman, Note: A Congressional Carve Out: The Necessity for Uniform Application of Professional Sports Leagues' Performance-enhancing Drug Policies, 84 S. Cal. L. Rev.  751 (2011)

Shannon Liu, Note: Obesity as an "Impairment" for Employment Discrimination Purposes under the Americans with Disabilities Act Amendments Act of 2008, 20 B.U. Pub. Int. L.J. 141 (2010)

Anne Marie Lofaso, The Vanishing Employee: Putting the Autonomous Dignified Union Worker Back to Work, 5 FIU  L. Rev.  495 (2010)

Jeffrey Lubbers, The Potential of Rulemaking by the NLRB, 5 FIU  L. Rev.  411 (2010)

Cynthia Mabry, The Browning of America – Multicultural and Bicultural Families in Conflict: Making Culture a Customary Factor for Consideration in Child Custody Disputes, 16 Wash. & Lee J. C.r. & Soc. Just. 413 (2010)

George McCue, Comment: Start a Family or Become a Professor? Parental Leave Policies for Postdoctoral Fellows Training for Academic Careers in the Sciences, 26 Wis. J.L Gender & Soc'y 109 (2011)

Katherine MacFarlane, The Improper Dismissal of Title VII Claims on "Jurisdictional" Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented to an Agency Without the Resources to Consider Them, 21 Geo. Mason U. Civ.  Rts. L.J. 213 (2011)

Michael McGuinness, The Meaning of Just Cause in North Carolina Public Employment Law: Carroll and its Progeny Provide for a Heightened Multifactor Standard for State Employee Disciplinary Cases, 33 Campbell L. Rev. 341 (2011)

Gillian MacNaughton &Diane Frey, Decent Work for All: A Holistic Human Rights Approach. 26 Am. U. Int'l L. Rev. 441 (2011)

Sharon Margalioth, Regulating Individual Employment Contracts Through Good Faith Duties, 32 Comp. Lab. L. & Pol'y J. 663 (2011)

Moshe Marvit, Note: An Incompletely Conceptualized Statute: The Railway Labor Act's Quasi-federal Agency and its Quasi-constitutional Problems, 38 Transp. L.J. 63 (2011)

Sara Mason, Cat's Paw Cases: The Standard for Assessing Subordinate Bias Liability, 38 Fla. St. U. L. Rev.  435 (2011)

David Mincberg, Note: Guns, Collective Bargaining and Moral Turpitude: Gilbert Arenas and the National Basketball Association, 10 Va. Sports & Ent. L.J. 43 (2010)

Richard Moberly, The Supreme Court's Antiretaliation Principle, 61 Case W. Res. L. Rev.  375 (2010)

Brit Mohler,  Note: Is the Breast Best for Business? The Implications of the Breastfeeding Promotion Act, 2 Wm. & Mary Bus. L. Rev.  155 (2011)

Teia Moore, Comment: When Happily Ever after Is Not Ever After, after All: Rectifying the Plan Documents Rule under ERISA to Benefit the Right Person, 52 S. Tex. L. Rev.  127 (2010)

Craig Morford, Note: H to B or Not to Be: What Gives Foreigners the Right to Come Here and Create American Jobs? 6 Entrepren. Bus. L.J. 299 (2011)

Muna Ndulo, African Customary Law, Customs, and Women's Rights, 18 Ind. J. Global Legal Stud. 87 (2011)

Terri Nilliasca, Note: Some Women's Work: Domestic Work, Class, Race, Heteropatriarchy, and the Limits of Legal Reform, 16 Mich. J. Race & L. 377 (2011)

Barbara Oomen, Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands, 33 Hum. Rts. Q. 175 (2011)

Mary-Rose Papandrea, The Free Speech Rights of Off-duty Government Employees, 2010 BYU  L. Rev.  2117

Rachelle Paquin, Note: Defining the "Fit": The Impact of Gender and Servicemember Status on Child Custody Determinations, 14 J. Gender Race & Just. 533 (2011)

Natalie Pedersen, A Legal Framework for Uncovering Implicit Bias, 79 U. Cin. L. Rev.  97 (2010)

Sarah Pierce, Note: Turning a Blind Eye: U.S. Corporate Involvement in Modern Day Slavery, 14 J. Gender Race & Just. 577 (2011)

Charles Piot,  The "Right" to Be Trafficked, 18 Ind. J. Global Legal Stud. 199 (2011)

Joshua Polster, Note: Workplace Grievance Procedures: Signaling Fairness but Escalating Commitment, 86 N.Y.U. L. Rev.  638 (2011)

Cassandra Robertson, A Collaborative Model of Offshore Legal Outsourcing, 43 Ariz. St. L.J. 125 (2011)

Mildred Robinson, The Current Economic Situation and its Impact on Gender, Race, and Class: The Legacy of Raced (And Gendered) Employment, 14 J. Gender Race & Just. 431 (2011)

Megan Roby, Comment: Surviving Draconian Law Unscathed: An Alternative to the Ledbetter Fair Pay Act, or an Employer's Guide to Compliance, 37 Ohio N.U. L. Rev.  245 (2011)

Scott Ross, Note: How on Earth Can You Possibly "File" an Oral Complaint?: An Analysis of the Boundaries of Section 215(a)(3) of the Fair Labor Standards Act, 84 St. John's L. Rev. 1543 (2010)

Sharon Sassler & Amanda Miller, Class Differences in Women's Family and Work Behaviors, 16 Wash. & Lee J. C.r. & Soc. Just. 349 (2010)

Jeremy Sarkin & Mark Koenig, Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy, 33 Hum. Rts. Q. 1 (2011)

Stewart Schwab & Michael Heise, Splitting Logs: An Empirical Perspective on Employment Discrimination Settlements. 96 Cornell L. Rev.  931 (2011)

Paul Secunda, The Contemporary "Fist Inside the Velvet Glove": Employer Captive Audience Meetings under the NLRA, 5 FIU  L. Rev.  385 (2010)

Achim Seifert, From the Making to the Transformation of Labor Law in Europe, 32 Comp. Lab. L. & Pol'y J. 825 (2011)

Hila Shamir,  About Not Knowing – Thoughts on Schwab and Heise's Splitting Logs: An Empirical Perspective on Employment Discrimination Settlements, 96 Cornell L. Rev. 957 (2011)

Stephen Shepard, Note: Negligent Hiring Liability: A Look at How it Affects Employers and the Rehabilitation and Reintegration of Ex-offenders, 10 Appalachian J.L 145 (2011)

Susan Stabile, In Defense of a More Coherent Approach to Executive and Rank and File Compensation, 25 J. Civ.  Rts. & Econ. Dev.  565 (2011)

Andrew Stewart,  Good Faith: A Necessary Element in Australian Employment Law? 32 Comp. Lab. L. & Pol'y J. 521 (2011)

Stewart Schwab & Michael Heise, Splitting Logs: An Empirical Perspective on Employment Discrimination Settlements, 96 Cornell L. Rev.  931 (2011)

Kerri Stone,  Substantial Limitations: Reflections on the AdAAA, 14 N.Y.U. J. Legis. & Pub. Pol'y 509

Bryan Sullivan, Note: Reconciling the Terms and Spirit of the Law: Pharmaceutical Sales Representatives and the FLSA Outside-sales Exemption, 96 Iowa L. Rev. 1429 (2011)

Charles Sullivan, Plausibility Pleading Employment Discrimination, 52 Wm. & Mary L. Rev.  1613 (2011)

Andrew Stumpff,  Darkness at Noon: Judicial Interpretation May Have Made Things Worse for Benefit Plan Participants under Erisa than Had the Statute Never Been Enacted, 23 St. Thomas L. Rev.  221 (2011)

Kazuo Sugeno, My Teacher Clyde Summers, 32 Comp. Lab. L. & Pol'y J. 505 (2011)

John Syllaios, Note: The Future of Discriminatory Local Ordinances Aimed at Regulating Illegal Immigration, 16 Wash. & Lee J. C.R. & Soc. Just. 639 (2010)

Symposium: Race, Gender, and Class at a Crossroads: A Survey of Their Intersection in Employment, Economics, and the Law, 14 J. Gender Race & Just. 359 (2011)

Symposium: Understanding Conflicts: Cross-cultural Perspectives, 28 Conflict Resol. Q. 229 (2011)

Symposium: Papers in Honor of Clyde Summers, 32 Comp. Lab. L. & Pol'y J. 493  (2011)

Symposium: The Growing Disconnect among Work, Family, and Marriage, 16 Wash. & Lee J. C.r. & Soc. Just. 331 (2010)

Symposium: The Transformation of Labour Law in Europe: A Comparative Study of 15 Countries, 1945-2004, 32 Comp. Lab. L. & Pol'y J. 809 (2011)

Symposium: Crowdsourcing the Work-Family Debate, 34 Seattle U. L. Rev.  639 (2011)

Symposium. Whither the Board? The National Labor Relations Board at 75, 5 FIU  L. Rev.  335 (2010)

Ruth Szanto, Note: "Excuse Me! Can You Spare Some Change . . . In this Economy?" a Socio-Economic History of Anti-panhandling Laws, 4 Phoenix L. Rev.  519 (2010)

Dorceta Taylor, Green Jobs and the Potential to Diversify the Environmental Workforce, 31 Utah Envtl. L. Rev.  47 (2011)

Rajeeve Thakur, Note: Totalization with Mexico: A Path to Immigration Reform, 16 Wash. & Lee J. C.r. & Soc. Just. 603 (2010)

Brenda. Valle, Note: You Don't Have to Reinvent the Wheel: A Comparison of Wage and Hour Laws, Their Effects on the Latino Family, and What We Can Learn from Them, 8 Hastings Race & Poverty L.J. 137 (2011)

Christophe Vigneau,  The Obligation of Good Faith in France. 32 Comp. Lab. L. & Pol'y J. 593 (2011)

Bernd.] Waas,  Good Faith in the Law of the Employment Relationship: Germany, 32 Comp. Lab. L. & Pol'y J. 603 (2011)

Dennis Walsh, Two Is Company and Two Can Be a Quorum: A Reply to Professor Sanchez, 5 FIU  L. Rev.  739 (2010)

Manfred Weiss, Clyde W. Summers: A Giant of Comparative Labor Law, 32 Comp. Lab. L. & Pol'y J. 511 (2011)

Susan Williams, Democracy, Gender Equality and Customary Law: Constitutionalizing Internal Cultural Disruption, 18 Ind. J. Global Legal Stud. 65 (2011)

Timothy Webster,  Ambivalence and Activism: Employment Discrimination in China, 44 Vand. J. Transnat'l L. 643 (2011)

Deborah Weiss,  The Annoyingly Indeterminate Effects of Sex Differences, 19 Tex. J. Women & L. 99 (2010)

Robert Wilkey, The Non-negotiable Employment Contract – Diagnosing the Employment Rights of Medical Residents, 44 Creighton L. Rev.  705 (2011)

Michael Wolff,  Stories of Civil Rights Progress and the Persistence of Inequality and Unequal Opportunity 1970-2010, 37 Wm. Mitchell L. Rev.  857 (2011)

George Wright,  Retaliation and the Rule of Law in Today's Workplace, 44 Creighton L. Rev.  749 (2011)

Mary Ziegler, Framing Change: Cause Lawyering, Constitutional Decisions, and Social Change, 94 Marq. L. Rev.  263 (2010)

Future Newsletters

The Labor and Employment Relations Association (LERA) Labor and Employment Law (LEL) Section Newsletter, Labor and the Law, is available each month via the LERA discussion list by email and posted on the LERA website. It is edited by Ellen Dannin, Fannie Weiss Distinguished Faculty Scholar and Professor of Law, Pennsylvania State University Dickinson School of Law, 327 Katz Building, University Park, PA 16802-1912. ejd13(at)psu(dot)edu.

To subscribe to the LERA discussion lists go to http://www.leraweb.org/participate/email-listservs

To learn more about the LERA and the opportunities if offers, go to the main website at http://www.leraweb.org/

The most current and back issues of the LEL newsletter may be viewed at http://www.leraweb.org/publications/labor-and-employment-law-newsletter

Copyright © Ellen Dannin 2011. All Rights Reserved. The LEL News may be reposted but only if it includes the copyright notice and the entire document.