Labor and Employment Law News - December 2004

Labor and the Law:
News and Current Events from the IRRA Section on Labor and Employment Law (LEL) © 2004

LEL Section Business

The Labor & Employment Law Section Meeting will take place at the Annual Conference on Friday, January 7, 12:30–2:15 p.m. Elections for officers will be held, and there will be a panel and discussion on pension funding. For details on the process for nominations and the slate of officers and board members, see last month's newsletter.

Panel: Funding (and Fulfilling) the Pension Promise
Chair: Kenneth May, Legal Editor, Bureau of National Affairs

Presenters:
Jim Wooten, University at Buffalo Law School, The State University of New York--A Historical Perspective on the Pension "Crisis"
Charles Jeszeck, General Accounting Office and Mark Glickman, GAO / PBGC--The Crisis Facing the Defined Benefit System
Teresa Ghilarducci, University of Notre Dame--ERISA and Pension Funding Over the Business Cycle

Discussants:
Howard Wial, Keystone Research Center
Susan Stabile, St. John's University School of Law

For a second panel with a focus on law:
Panel: Labor's Fate: Changing Law - Using Law for Change, Sunday, January 9, 8-10 am

Chairperson: Sheldon Friedman, AFL-CIO
Panelists:
Ellen Dannin, Wayne State Law School--Taking Back the Workers' Law: A Strategy for Labor Law Reform Now
Fred Feinstein, School of Public Affairs, University of Maryland--State and Local Initiatives to Strengthen Collective Bargaining Rights
Sarah Fox, AFL-CIO--The Employee Free Choice Act
George Gonos, Department of Economics and Employment Relations, SUNY - Potsdam--The Place of Legal Tactics in Organizing Contingent Labor
James Gray Pope Rutgers University, Center for Law & Justice--Using Constitutional Law to Reclaim Workers' Rights

Hospital Can Proceed With Counterclaim Against Employee Who Concealed Subpoena
A recent case from the Northern District of Illinois poses a stark conflict between protections for whistleblowers and employer rights to the confidentiality of documents. Given the importance of the issues, the district judge's decision is not likely to be the final word.

Briefly, the employee filed a False Claims Act Qui Tam suit against the corporation of which her employer, a hospital, is a subsidiary. The suit was in relation to information that came to her as the hospital's quality assurance coordinator. The defendant counterclaimed against the employee, alleging that she had breached her fiduciary duty to the employer, breached her confidentiality agreement, and converted property not hers.

The employer's claims grew out of the employee's secretly responding to a subpoena from the Department of Justice addressed to her as QA Coordinator. The subpoena requested production of documents connected to an investigation of health care offenses, including records of improper billing. The employee was the custodian of the employer's confidential billing documents. She had also signed a confidentiality agreement not to disclose proprietary or confidential information. In addition, the employee did not tell the hospital about the subpoena nor her response to it.

The issues discussed in the court's decision include whether allowing the employer's counterclaim would chill whistleblower disclosures; whether the confidentiality agreement was enforceable; whether dismissing the counterclaim would effectively give the employee immunity; whether protections under 18 USC § 3486(d) for people who respond to subpoenas apply; and what damages, if any, had the employer suffered from the employee's failure to tell it about the subpoena.

Among other things, the district court held that the confidentiality agreement was unenforceable in this situation. Otherwise, it would trump the policy of protecting whistleblowers who report fraud against the government. United States ex rel. Grandeau v. Cancer Treatment Centers of America, Case No.99 C 8287 (N.D. Ill. Nov.12, 2004).

Successorship Clause
A recent case from the Northern District of Indiana presents a number of interesting issues growing out of a successorship clause in a collective bargaining agreement. The clause forbade the employer from selling or otherwise transferring ownership unless the buyer had entered into an agreement with the union that recognized it as the unit's bargaining representative and that set terms and conditions of employment that would be effective as of the closing date. The decision discusses the clause's legality, as well as issues of arbitrability. Steel Workers v. Cooper-Standard Automotive, Case No.1:04-CV-358-TS (N. D. Ind Nov. 2, 2004)

Privately Created Statute of Limitations
The Sixth Circuit Court of Appeals recently found valid a private "statute of limitations" DaimlerChrysler had placed in its job application. The "statute of limitations" required applicants to bring any future employment-related claim against the company within six months of the time the claim arose. The court noted that Michigan courts have upheld similar terms in an employment application as long as the shortened statute of limitations is reasonable. It found this period gave the employee enough time to investigate the claim and file a case. Thurman v. DaimlerChrysler Inc., Case No.02-2474 (6th Cir. Nov. 19, 2004).

ERISA Preemption of State Insurance Regulation
The Supreme Court of Hawai'i has held that ERISA partially preempts a state law that allows the state Insurance Commissioner to conduct reviews of health insurers' decisions. Parts of the state law that regulate insurance were not preempted, but those parts that created remedies greater than those under ERISA were preempted. The U.S. Supreme Court's decisions in this area are less than clear, but the Hawai'i Supreme Court concluded, first, that those cases interpret ERISA to protect states' traditional right to regulate insurance, in particular state laws that affect insurance's risk-pooling. However, state regulation of insurance is preserved only to the extent it does not conflict with ERISA. In this case, the court found, the law conflicted with ERISA's scheme of remedies and was, therefore, preempted. Hawaii Management Alliance Association v. Insurance Commissioner, Case No. 24801 (Nov. 18, 2004).

ERISA Preemption Of State Fraud Claims
The U.S. Court of Appeals for the 10th Circuit recently held that ERISA does not preempt a lawsuit based on a state fraud claim by former Lucent Technologies employees against their former employer. The employees alleged that Lucent committed fraud when it persuaded them to accept an early retirement benefits package that the company said was a one-time only, nonnegotiable offer. After more than 1,000 eligible employees accepted the early retirement package, Lucent announced that it would pay the same benefits to all employees who were eligible to retire and, in addition, give them a one-time pension benefit of $15,000.

The court found that preemption did not apply here, because the plaintiffs' claim was not to recover benefits they were owed under the plan. Rather, they were seeking tort claims for fraud. This falls outside ERISA.

There is a split among the federal circuits as to whether ERISA preemption would apply to this sort of claim. Felix v. Lucent Technologies Inc., Case No.03-6112 (10th Cir. Oct. 26, 2004).

Web Links

Labor Department Notice of Proposed Rulemaking, 68 Fed. Reg. 64225 (Nov. 3, 2004). The proposed rule requires federal unions to inform new members of their democratic rights, including rights to inspect collective bargaining agreements, participate in union activities, including elections for officer, and exercise free speech rights without fear of retaliation http://www.dol.gov/esa/regs/compliance/olms/CSRAFactSheet.pdf

Study on workplace violence research "Workplace Violence: Wakefield Responds" http://www.dohertypartners.com/FINALREPORTWPV.pdf

National Workrights Institute, On Your Tracks: GPS Tracking in the Workplace http://www.workrights.org/issue_electronic/NWI_GPS_Report.pdf

Recent Labor and Employment Law Publications

Frederick Abbott, Are the Competition Rules in the WTO TRIPS Agreement Adequate? 7 J. Int'l Econ. L. 687 (2004)

Timothy Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J.l. & Pub. Pol'y 203 (2004)

James Bacchus, A Few Thoughts on Legitimacy, Democracy, and the WTO, 7 J. Int'l Econ. L. 667 (2004)

Seth Barrett, Note: Negligent Retention: Does the Imposition of Liability on Employers for Employee Violence Contradict the Public Policy of Providing Ex-felons with Employment Opportunities? 37 Suffolk U. L. Rev. 1067 (2004)

Stephen Befort, A New Voice for the Workplace: A Proposal for an American Works Councils Act, 69 Mo. L. Rev. 607 (2004)

Stephen Befort & Bryan Smith, At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, 20 Lab. Law. 107 (2004)

Megan Bell, Comment: Transsexuals and the Law, 98 Nw. U. L. Rev. 1709 (2004)

Samuel Bagenstos, The Future of Disability Law. 114 Yale L.J. 1 (2004)

Dina. Berlyn, Enforcing Non-race Based Civil Rights Against the States, 7 Quinnipiac Health L.J. 241 (2003-2004)

Jennifer Berman, The Needle and the Damage Done: How Hoffman Plastics Promotes Sweatshops and Illegal Immigration and What to Do about It, 13 Kan. J.L. & Pub. Pol'y 585 (2004)

Richard Blackhurst & David Hartridge, Improving the Capacity of WTO Institutions to Fulfil Their Mandate, 7 J. Int'l Econ. L. 705 (2004)

Miller Brownstein, Note: Injury-free, but Money for Me: Whether the Civil Rights Act of 1991 Permits Punitive Damages in the Absence of Compensatory Damages, 84 B.U. L. Rev. 1049 (2004)

John Calmore, Displacing the Common Sense Intrusion of Whiteness from Within and Without: The Chicano Fight for Justice in East L.A., 92 Cal. L. Rev. 1517 (2004)

Caitlyn Campbell, Note: Overstepping One's Bounds: The Department of Labor and the Family and Medical Leave Act, 84 B.U. L. Rev. 1077 (2004)

Steve Charnovitz, The WTO and Cosmopolitics, 7 J. Int'l Econ. L. 675 (2004)

Jim Chen, The Nature of the Public Utility: Infrastructure, the Market, and the Law, 98 Nw. U. L. Rev. 1617 (2004)

Kevin Clermont & Stewart Schwab. How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Stud. 429 (2004)

Hope Comisky & Natalie Abbott, Temporary Workers May Get "Two Bites" at Recovery under the Employment Discrimination Laws, 20 Lab. Law. 1 (2004)

Kevin Cope, Comment: Sutton Misconstrued: Why the ADA Should Now Permit Employers to Make Their Employees Disabled, 98 Nw. U. L. Rev. 1753 (2004)

Vivian Curran, Racism's Past and Law's Future, 28 Vt. L. Rev. 683 (2004)

Ben Dahl, A Further Darkside to Unsolicited Commercial E-mail? An Assessment of Potential Employer Liability for Spam E-mail, 22 J. Marshall J. Computer & Info. L. 179 (2003)

Elizabeth Defeis, Protocol to Prevent, Suppress and Punish Trafficking in Persons – A New Approach, 10 ILSA J. Int'l & Comp. L. 485 -491 (2004)

Deva, Surya. UN's Human Rights Norms for Transnational Corporations and Other Business Enterprises: An Imperfect Step in the Right Direction? 10 ILSA J. Int'l & Comp. L. 493 (2004)

Leah Durant, Comment: Gender Bias and the Legal Profession: A Discussion of Why There Are Still So Few Women on the Bench, 4 Margins 181 (2004)

Harry Edwards, The Journey from Brown v. Board of Education to Grutter v. Bollinger: From Racial Assimilation to Diversity, 102 Mich. L. Rev. 944 (2004)

Claus-Dieter Ehlermann & Nicolas Lockhart, Standard of Review in WTO Law, 7 J. Int'l Econ. L. 491 (2004)

Theodore Eisenberg & Jonathan Macey, Was Arthur Andersen Different? An Empirical Examination of Major Accounting Firm Audits of Large Clients, 1 J. Empirical Legal Stud. 263 (2004)

Jennifer Elrod, Academics, Public Employee Speech, and the Public University, 22 Buff. Pub. Int. L.J. 1 (2003-2004)

Karen Eltis, The Emerging American Approach to E-mail Privacy in the Workplace: Its Influence on Developing Caselaw in Canada and Israel: Should Others Follow Suit? 24 Comp. Lab. L. & Pol'y J. 487 (2003)

John Fassett, et al., Supreme Court Law Clerks' Recollections of Brown v. Board of Education, 78 St. John's L. Rev. 515 (2004)

Franklin Ferguson, A New Ride: Using Title II as a Civil Rights Vehicle to American Society's Elusive "Level Playing Fields", 27 Am. J. Trial Advoc. 517 (2004)

Ann Fisher, Small Employers and the Health Insurance Needs of Employees with High Health Care Costs: A Need for Better Models, 8 Employee Rts. & Emp. Pol'y J. 53 (2004)

Keith Fisher, The Higher Calling: Regulation of Lawyers Post-Enron, 37 U. Mich. J.L. Reform 1017 (2004)

Rod Fliegel & Ronald Arena, The Impact of the Fact Act on Employee Misconduct Investigations and Implications for FCRA and Title VII Compliance. 20 Lab. Law, 97 (2004)

Michael Fox & Robert Mead, The Relationship of Disability to Employment Protection under Title I of the ADA in the United States Circuit Courts of Appeal, 13 Kan. J.L. & Pub. Pol'y 485 (2004)

Chris Goodman, Redacting Race in the Quest for Colorblind Justice: How Racial Privacy Legislation Subverts Antidiscrimination Laws, 88 Marq. L. Rev. 299 (2004)

Denis Goulet, Changing Development Debates under Globalization: The Evolving Nature of Development in the Light of Globalization, 6 J.L. & Soc. Challenges 1 (2004)

James Gross, Incorporating Human Rights Principles into U.S. Labor Arbitration: A Proposal for Fundamental Change, 8 Employee Rts. & Emp. Pol'y J. 1 (2004)

Benjamin Haley, Note: "A Clear Mandate of Public Policy" Remains Unclear in Maryland's Wrongful Discharge Jurisprudence, 63 Md. L. Rev. 605 (2004)

Tanya Hernandez, Afro-Mexicans and the Chicano Movement: The Unknown Story, 92 Cal. L. Rev. 1537 (2004)

Scott Jansen, Note: I Can't Get No Satisfaction: Missouri Requires Non-settling Defendants to Plead and Prove Prior Settlements as an Affirmative Defense, 69 Mo. L. Rev. 763 (2004)

Andrea Johnson, Reconciling Copyright Ownership Policies for Faculty-authors in Distance Education, 33 J.L. & Educ. 431 (2004)

Jaimie Kent, Note: The Debate in California over and Implications of New Ethical Standards for Arbitrator Disclosure: Are the Changes Valid or Appropriate? 17 Geo. J. Legal Ethics 903 (2004)

Allan King, Statistics as a Guide to RIF Selections: Caveat Emptor. 20 Lab. Law. 79 (2004)

Lim-lum Kit-wye, Defining Corporate Social Responsibility – A Singapore Perspective, 6 Austl. J. Asian L. 131 (2004)

Timothy Kuhner, International Poverty Law: A Response to Economic Globalization, 22 Buff. Pub. Int. L.J. 75 (2003-2004)

Julia Lacarte, Transparency, Public Debate and Participation by NGOs in the WTO: A WTO Perspective, 7 J. Int'l Econ. L. 683 (2004)

Thomas Lambert, Avoiding Regulatory Mismatch in the Workplace: An Informational Approach to Workplace Safety Regulation, 82 Neb. L. Rev. 1006 (2004)

Anne Lawton, Operating in an Empirical Vacuum: The Ellerth and Faragher Affirmative Defense, 13 Colum. J. Gender & L. 197 (2004)

Tammi Lees, Note: The Individual Vs. The Employer: Who Should Be Held Liable under Employment Discrimination Law? 54 Case W. Res. L. Rev. 861 (2004)

Laurie Leader & Melissa Burger, Let's Get a Vision: Drafting Effective Arbitration Agreements in Employment and Effecting Other Safeguards to Insure Equal Access to Justice, 8 Employee Rts. & Emp. Pol'y J. 87 (2004)

Shirley Lung, Developing a Course on the Rights of Low-wage Workers, 54 J. Legal Educ. 380 (2004)

William Lynch, Comment: The Application of Title III of the Americans with Disabilities Act of 1990 to the Internet: Proper E-planning Prevents Poor E-performance, 12 Commlaw Conspectus 245 (2004)

Laura McKibbin, Comment: The ADA Takes on the Movie Industry: Do the Disabled Have a Right to the Best Seats in the House? 38 U.S.F.L. Rev. 831 (2004)

Erika Mann, A Parliamentary Dimension to the WTO – More than Just a Vision?! 7 J. Int'l Econ. L. 659 (2004)

Gregory Mersol, Ethical Issues in Class Action Employment Litigation, 20 Lab. Law. 55 (2004)

Laura Milnichuk, Note: The Circle of Labor: The NAALC, ILO, FTAA and Labor Dispute Resolution Mechanisms, 1 Int'l L. Rev. 235 (2004)

Megan Miller, Comment: Workers' Comp 101: Injured Employees Seek an Education Rather than Employment, 82 N.C. L. Rev. 2061 (2004)

Matthew Mitchell, Comment: Employment Involvement Programs: The Time Has Come to Amend Section 8(a)(2) of the NLRA, 34 Cumb. L. Rev. 503 (2003-2004)

T. L. Nagy, The Fall of the False Dichotomy: The Effect of Desert Palace v. Costa on Summary Judgement in Title VII Discrimination Cases, 46 S. Tex. L. Rev. 137 (2004)

Panel: Women Taking the Lead in Law and Law Firms, 13 Colum. J. Gender & L. 354 (2004)

Panel: The Effect of the University of Michigan Cases on Affirmative Action in Employment: Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employment Discrimination Law, Labor Relations and Employment Law, and Minority Groups, 8 Employee Rts. & Emp. Pol'y J. 127 (2004)

Panel: Global Perspectives on Workplace Harassment Law: Proceedings of the 2004 Annual Meeting, Association of American Law Schools Section on Labor Relations and Employment Law, 8 Employee Rts. & Emp. Pol'y J. 151 (2004)

Seam Park, Comment: Curing Causation: Justifying a "Motivating-factor" Standard under the ADA, 32 Fla. St. U. L. Rev. 257 (2004)

Matthew Parry, Dieu Li Volt? Employment Discrimination Against Muslims, 23 Legal Ref. Serv. Q. (2/3) 85 (2004)

Renee Parsons & Thomas Speiss, Does the Americans with Disabilities Act Really Protect Alcoholism? 20 Lab. Law. 17 (2004)

Ernst-Ulrich Petersmann, Challenges to the Legitimacy and Efficiency of the World Trading System: Democratic Governance and Competition Culture in the WTO. Introduction and Summary, 7 J. Int'l Econ. L. 585 (2004)

Ernst-Ulrich Petersmann, 'Human Rights Approach' Advocated by the UN High Commissioner for Human Rights by the International Labour Organization: Is it Relevant for WTO Law and Policy? 7 J. Int'l Econ. L. 605 (2004)

Joanne Ray, The Ten Worst Transportation Industry Employer Mistakes 2001-2003, 30 Transp. L.J. 81 (2002)

Camille Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 N.Y.U. L. Rev. 1134 (2004)

Roberto Rosas, Maternity Rights in Mexico: with References to the Spanish and American Codes, 6 J.L. & Soc. Challenges 151 (2004)

Gary Sampson, Is There a Need for Restructuring the Collaboration among the WTO and UN Agencies So as to Harness Their Complementarities? 7 J. Int'l Econ. L. 717 (2004)

Matthew Schiff, A Primer on Case Law under the Americans with Disabilities Act, 39 Tort Trial & Ins. Prac. L.J. 1141 (2004)

Paul Secunda, Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 Fla. St. U. L. Rev. 51 (2004)

Gregory Shaffer, Parliamentary Oversight of WTO Rule-Making: The Political, Normative, and Practical Contexts, 7 J. Int'l Econ. L. 629 (2004)

Benedict Sheehy, The Importance of Corporate Models: Economic and Jurisprudential Values and the Future of Corporate Law, 2 Depaul Bus. & Com. L.J. 463 (2004)

David Skaggs, How Can Parliamentary Participation in WTO Rule-making and Democratic Control Be Made More Effective in the WTO? A United States Congressional Perspective, 7 J. Int'l Econ. L. 655 (2004)

Elizabeth Spainhour, Recent Development. Unsealing Settlements: Recent Efforts to Expose Settlement Agreements That Conceal Public Hazards, 82 N.C. L. Rev. 2155 (2004)

Megan Strickland, Note: The Impact of Interpretation: The Age Discrimination in Employment Act as Determined by the Sixth Circuit, 28 Seton Hall Legis. J. 197 (2003)

Charles Sullivan, The World Turned Upside Down?: Disparate Impact Claims in White Males, 98 Nw. U. L. Rev. 1505 (2004)

Matthew Sutter, Note: Title VII & the ADA's Continuing Violation Theory and the Single Filing Rule: A Guide to How to "Bootstrap" and "Piggyback" Stale Claims onto Fresh Ones. 23 QLR 299 (2004)

Symposium: 50 Years of Brown v. Board of Education, 90 Va. L. Rev. 1537 (2004)

Alan Sykes, The Persistent Puzzles of Safeguards: Lessons from the Steel Dispute, 7 J. Int'l Econ. L. 523 (2004)

Symposium: Redefining Justice in a Global Era, 6 J.L. & Soc. Challenges 1 (2004)

Symposium: Crossing Boundaries, Redefining Gender: A New Front on Equality, 4 Geo. J. Gender & L. 705 (2003)

Symposium: WTO Negotiators Meet the Academics – Challenges to the Legitimacy and Efficiency of the World Trading System, 7 J. Int'l Econ. L. 585 (2004)

David Tatel, Judicial Methodology, Southern School Desegregation, and the Rule of Law, 79 N.Y.U. L. Rev. 1071 (2004)

Daniel Terrell, Note: The Louisiana Legislature's Response to Swat 24 Shreveport Bossier, Inc. v. Bond: The Noncompete Pendulum Swings Toward Debt Peonage. Will the Judiciary's Answer Achieve the Fragile Employer-Employee Balance? 64 La. L. Rev. 699 (2004)

Christine Ver Ploeg, Terminating Public School Teachers for Cause under Minnesota Law, 31 Wm. Mitchell L. Rev. 303 (2004)

Roger Waldinger & Christopher Erickson, Temporarily Foreign? The Labor Market for Migrant Professionals in High-Tech at the Peak of the Boom, 24 Comp. Lab. L. & Pol'y J. 463 (2003)

Rolf Wank, Legal Framework for High-Tech Workers in Germany, 24 Comp. Lab. L. & Pol'y J. 435 (2003)

Kaliko Warrington, Comment: Preserving the Religious Freedom and Autonomy of Religious Institutions, 26 U. Hawai`i L. Rev. 203 (2003)

Kara Young, Kamehameha's Hawaiians-Only Admissions Policy under 42 U.S.C. Section 1981: A Permissible Pursuit of Practical Freedom, 26 U. Hawai`i L. Rev. 309 (2003)

Richard West, No Plaintiff Left Behind: Liability for Workplace Discrimination and Retaliation in New Jersey, 28 Seton Hall Legis. J. 127 (2003)