Labor and Employment Law News - February 2011

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

February 2011
Labor and Employment Law News

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

The NLRA Protects Supervisors Who Are Terminated or Disciplined for Refusing to Commit an Unfair Labor Practices

            Although the National Labor Relations Act protects only employee rights – and supervisors are excluded from the class of employees – there are situations in which the NLRA also protects supervisors.  This exception to the rule is not well known, and, as a recent Michigan case reminds us, it is important to be aware of these protections.  Lewis v.  Whirlpool Corp.,  Case No.09-4231 (6^th Cir.  Jan.  12, 2011). http://www.michbar.org/opinions/us_appeals/2011/011211/47840.pdf

            The supervisor here filed a case in Michigan state court claiming that he had been wrongfully discharged because he had refused to fire employees for organizing a union.  If those claims were found to be true, he would be protected by the NLRA. Protecting a supervisor who refuses to violate employees’ rights to engage in collective activity or organize a union is seen as necessary to  protect employee NLRA rights.

            A few other comments about this sort of situation are in order.

            First, not everyone whose title is supervisor is actually a supervisor under the NLRA’s definition. To be a supervisor under the NLRA requires possessing a high degree of power over subordinates. As a result, many people who are called supervisors would be found by the NLRB to be employees and to be directly protected by the NLRA.

            To seek NLRB protection for such a firing requires, first, filing a charge with the NLRB. The NLRA has a 6 month statute of limitations, so filing a case in court – instead of filing a charge with the NLRB – may mean letting the statute of limitations will run. Information about these rights and how to file a charge are found here. http://www.nlrb.gov/index.aspx

            In this case, as it turns out, the supervisor had filed a charge with the NLRB before the court case before the court case was filed. The NLRB has been dismissed for lack of evidence to support the violation. If what is actually an NLRA claim is filed in a state or federal court – whether it has merit or not – the court must dismiss the case.

            Although not relevant to this case, there is another area where the NLRA’s protections are not widely understood. It is widely believed that the NLRA protects only the rights connected with organizing a union. Less well known are the NLRA’s protections of “concerted activities”. Concerted activities that are protected by the NLRA are actions taken together with or on behalf of other employees to improve workplace conditions. A common example of a violation of those rights is a supervisor ’s telling employees not to talk with one another about workplace conditions.

            Finally, a discussion of information and statistics related to NLRB cases may be found here. Ellen Dannin, Enforcing Labor Rights, Employment Policy Research Network, January 2011http://employmentpolicy.org/topic/16/blog/enforcing-labor-rights

Identity Theft, Employee Privacy Rights, and Employer Responsibility

            Are employers liable for harm their employees suffer when the employees’ personal information – maintained by their employer – has been stolen? The 9^th Circuit Court of Appeals recently handed down two decisions growing out of employee identity theft in the same case. Krottner v. Starbucks Corp., Case No.09-35823 (9^th Cir. Dec. 14, 2010)

http://www.ca9.uscourts.gov/datastore/opinions/2010/12/14/09-35823.pdf

            The first case held that the employees had standing – that is, they had the legal right– to bring a class action claim against their employer because a company laptop with the personal information of 97,000 employees was stolen. The employees claimed that their employer had (1) acted negligently in not protecting employee personal information and (2) breached a contract  implied under state law to protect their information.

            The court found that even though there was no evidence that the information had been misused, the employees could claim a privacy  injury based on potentially suffering future harm from the theft. The court explained:

If a plaintiff faces “a credible threat of harm,” and that harm is “both real and immediate, not conjectural or hypothetical,” the plaintiff has met the injury-in-fact requirement for standing under Article III [of the US Constitution]. Here, Plaintiffs-Appellants have alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data.

            In the second decision in the same case, the court dismissed a state claim that the employer’s failure to protect the employees’ personal information was negligent or breached an implied contract, because there was no evidence their information had so far been misused or that the plaintiffs had suffered any harm. Under Washington state law, plaintiffs must allege and show actual loss or damage. The mere possibility of future harm is not enough.

Of Causal Connections

            Many employment laws and causes of action have a common structure:  The *Plaintiff* was *injured* *because of* *protected activity or status* by  the *Defendant’s* *actions*.  Lawyers will refer to the words within each set of asterisks as the “elements of the claim.” Elements of a claim create a “checklist” of what the plaintiff must prove to win a case. The plaintiff must prove each element, except for those elements the defendant concedes. Each of the words within the asterisks can be in issue depending on the facts of a case. Debano-Griffin v.

            An example of how this structure plays out and affects the outcome of a case is found in a recent lawsuit under the Michigan Whistleblowers' Protection Act. The case was decided 2-1, and the majority and dissent decisions do a nice job of presenting opposing views as to how the law applies to the facts presented. A key difference between the two opinions is whether the plaintiff’s firing was because she had blown the whistle on improper behavior or whether her firing, which came after she blew the whistle, was merely a timing coincidence and that she would have been fired even if she had not been a whistleblower.. Lake County, Case No. 282921 (Mi. Ct. App. Dec. 16, 2010) http://www.michbar.org/opinions/appeals/2010/121610/47609.pdf

Web Links

Eileen Appelbaum & Ruth Milkman, Leaves That Pay: Employer and Worker Experiences with Paid Family Leave in California, January 2011 http://www.cepr.net/documents/publications/paid-family-leave-1-2011.pdf

Daniel J.B. Mitchell, Government by (Hot) Checks and (Im)Balances: California's State Budget from the May 2009 Voter Rejection to the October 2010 Budget Deal, Employment Policy Research Network, January 2011 http://www.anderson.ucla.edu/documents/areas/fac/hrob/Mitchell-HotChecksImbalances.pdf

National Law Enforcement Officers Memorial Fund, 2010 End of Year Officer Fatality Report  http://www.nleomf.org/facts/research-bulletins/

Office of the NLRB General Counsel, Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) cases, Memorandum GC 11-05 January 20, 2011 http://www.nlrb.gov/shared_files/GC%20Memo/2011/GC%2011-05%20Deferral%20guideline%20memo.pdf

Office of the NLRB General Counsel, Case Handling Instructions for All Cases under Coordination by the Division of Operations Management or a Regional Office Memorandum OM 11-25(CH), January 19, 2011 http://www.nlrb.gov/shared_files/OM%20Memo/2011/OM%2011-25%28CH%29%20Casehandling%20Instructions%20.pdf

Office of the NLRB General Counsel, Revised Casehandling Instructions Regarding the Use of Default Language in Informal Settlement Agreements and Compliance Settlement Agreements, Memorandum GC 11-04 January 12, 2011 http://www.nlrb.gov/shared_files/GC%20Memo/2011/GC%2011-04%20Default%20Language.pdf

Ellen Dannin, No Rights Without a Remedy - Securing Effective National Labor Relation Act Remedies http://employmentpolicy.org/sites/eprn.cloud.ojctech.com/files/Effective%20NLRA%20Remedies.pdf

U. S. Department of Labor - Employment and Training Administration, CareerOneStop (Worker ReEmployment is your one-stop site for employment, training and financial help after a layoff) http://www.careeronestop.org/reemployment/

U.S. Department of Labor Strategic Plan FY 2011-2016 http://www.dol.gov/_Sec/stratplan/

Shawn Fremstad, Implementing the Coverage Provisions of Health Care Reform: What’s at Stake for Direct Care Workers, January 2011
http://www.cepr.net/documents/publications/health-care-01-2011.pdf

UAW Principles for Fair Union Elections, January 3, 2011
http://www.uaw.org/articles/uaw-principles-fair-union-elections

Seyforth, Shaw, Preview: Annual Workplace Class Action Litigation Report 2011 Edition
http://www.seyfarth.com/dir_docs/news_item/74ac8de1-0a63-40b9-9d3f-050b85f00d80_documentupload.pdf
Full report may be downloaded here:
http://www.seyfarth.com/ClassActionReport/

Elaine Halchin,  et alia, Inherently Governmental Functions and Other Work Reserved for Performance by Federal Government Employees: The Obama Administration's Proposed Policy  (Congressional Research Service R41209) October 1, 2010  http://opencrs.com/document/R41209/2010-10-01/

Frank Neuhauser, et alia, Working Safer or Just Working Longer? The Impact of an Aging Workforce on Occupational Injury and Illness Costs, Center for the Study of Social Insurance http://www.dir.ca.gov/chswc/Reports/2011/CHSWC_AgingWorkforceOccupationalInjuryIllnessCost.pdf

Kathryn J. Byun, The U.S. Housing Bubble and Bust: Impacts on Employment, Monthly Labor Review December 2010 http://www.bls.gov/opub/mlr/2010/12/art1full.pdf

Lucy P. Eldridge & Sabrina Wulff Pabilonia, Bringing Work Home: Implications for BLS Productivity Measures, Monthly Labor Review December 2010 http://www.bls.gov/opub/mlr/2010/12/art2full.pdf

Sally L. Anderson, Duration of Unemployment in States, 2007–09, Monthly Labor Review December 2010 http://www.bls.gov/opub/mlr/2010/12/art3full.pdf

Institute for Women’s Policy Research (IWPR), 44 Million U.S. Workers Lacked Paid Sick Days in 2010 IWPR #B293 January 2011 http://www.iwpr.org/pdf/B293PSD.pdf

Robert Drago, et alia, Better Health for Mothers and Children: Breastfeeding Accommodations under the Affordable Care Act - Institute for Women’s Policy Research (IWPR), December 2010  http://www.iwpr.org/pdf/B292.pdf

Seton Hall Law School, Immigrant's Rights / International Human Rights Clinic, Center for Social Justice, .All Work and No Pay: Day Laborers, Wage Theft, and Workplace Justice in New Jersey, January 2011 http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/loader.cfm?csModule=security/getfile&PageID=177699

John Schmitt, Hye Jin Rho &  Nicole Woo, Unions and Upward Mobility for Asian American and Pacific Islander Workers, January 2011 http://www.cepr.net/documents/publications/unions-aapi-2011-01.pdf

Douglas Holtz-Eakin & Martin Wachs, National Transportation Policy Project, Strengthening Connections Between Transportation Investments and Economic Growth
http://bipartisanpolicy.org/sites/leraweb.org/files/NTPP%20Strengthening%20Connections%20Paper.pdf

EBRI Issue Brief – February 2011, A Post-Crisis Assessment of Retirement Income Adequacy for Baby Boomers and Gen Xers
http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4742

EBRI, 401(k) Balances and Changes Due to Market Volatility – Data to January 1, 2011 http://www.ebri.org/?fa=401kbalances

EBRI Databook on Employee Benefits, January 2011
http://www.ebri.org/publications/books/?fa=databook

Ellen Dannin, Of Pensions and Piggybanks: The Challenges of Ensuring a Secure Retirement,  Employment Policy Research Network, January 2011
http://employmentpolicy.org/topic/16/blog/pensions-and-piggybanks-challenges-ensuring-secure-retirement

Dean Baker & Kris Warner, The Social Security Benefits of Sitting Senators, January 2011 http://www.cepr.net/documents/publications/senators-ss-2011-01.pdf

Shawn Fremstad, Income, Inequality and Food Prices, December 2010
http://www.cepr.net/index.php/publications/reports/income-inequality-and-food-prices

Shawn Fremstad, Implementing the Coverage Provisions of Health Care Reform: What’s at Stake for Direct Care Workers January 2011
http://www.cepr.net/documents/publications/health-care-01-2011.pdf

Christian E. Weller, On Uneven Ground, Employment Policy Research Network http://employmentpolicy.org/sites/eprn.cloud.ojctech.com/files/PERI%20WP245,%20corporate%20governance.pdf

Jason Russell, The Impact of Right-to-Work, Employment Policy Research Network http://employmentpolicy.org/sites/eprn.cloud.ojctech.com/files/Jason%20Russell%20MA%20Thesis%20on%20Right-to-Work.pdf

Lauren D. Appelbaum, Why a domestic workers bill of rights? Employment Policy Research Network http://employmentpolicy.org/topic/16/research/why-domestic-workers-bill-rights-0

David Lewin, The New 'Managerial Misclassification' Challenge to Old Wage and Hour Law; Or, What is Managerial Work?", Employment Policy Research Network http://employmentpolicy.org/topic/16/research/new-managerial-misclassification-challenge-old-wage-and-hour-law-or-what-manageria

Ellen Dannin, Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited: The Case of Brown University, Employment Policy Research Network  http://employmentpolicy.org/topic/16/research/understanding-how-employees%E2%80%99-rights-organize-under-national-labor-relations-act-ha

Government Accountability Office, VA Health Care: VA Spends Millions on Post-Traumatic Stress Disorder Research and Incorporates Research Outcomes into Guidelines and Policy for Post-Traumatic Stress Disorder Services  GAO-11-32, Jan 24, 2011 http://www.gao.gov/new.items/d1132.pdf

Government Accountability Office, Defense Business Transformation: DOD Needs to Take Additional Actions to Further Define Key Management Roles, Develop Measurable Goals, and Align Planning Efforts  GAO-11-181R, Jan 26, 2011 http://www.gao.gov/new.items/d11181r.pdf

Government Accountability Office, Military Personnel: Personnel and Cost Data Associated with Implementing DOD's Homosexual Conduct Policy  GAO-11-170, Jan 20, 2011 http://www.gao.gov/new.items/d11170.pdf

Government Accountability Office, Defense Acquisitions: Further Action Needed to Better Implement Requirements for Conducting Inventory of Service Contract Activities  GAO-11-192, Jan 14, 2011 http://www.gao.gov/new.items/d11192.pdf

Recent Labor and Employment Law Articles

Taunya Banks, Thurgood Marshall, the Race Man, and Gender Equality in the Courts, 18 Va. J. Soc. Pol'y & L. 15 (2010)

Mario Barnes, et alia, A Post-Race Equal Protection? 98 Geo. L.J. 967 (2010)

David Barnhill, Note: Cloud Computing and Stored Communications, 25 Berkeley Tech. L.J. 621 (2010)

Keith Blair, Better Disabled than Devout? Why Title VII Has Failed to Provide Adequate Accommodations Against Workplace Religious Discrimination, 63 Ark. L. Rev. 515 (2010)

Jason Bristol, et alia, Intended and Unintended Consequences: The 2006 Fair Minimum Wage Amendment of the Ohio Constitution, 58 Clev. St. L. Rev. 367 (2010)

Kyle Burke, Comment: The National Mediation Board's Rule Proposal for Representation Elections: If it Ain't Broke, 75 J. Air L. & Com. 669 (2010)

Lorig Charkoudian & Ellen Wayne, Fairness, Understanding, and Satisfaction: Impact of Mediator and Participant Race and Gender on Participants' Perception of Mediation, 28 Conflict Resol. Q. 23 (2010)

Timothy Coley, Getting Notices: Direct and Indirect Power-Allocation in the Contemporary American Labor Market, 59 Cath. U. L. Rev. 965 (2010)

Megan Coluccio, Comment: Fait Accompli?: Where the Supreme Court and Equal Pay Meet a Narrow Legislative Override under the Lilly Ledbetter Fair Pay Act, 34 Seattle U. L. Rev. 235 (2010)

Conrad, Harald.  A Review of Leonard J. Schoppa, Race for the Exits: The Unraveling of Japan's System of Social Protection, 32 Comp. Lab. L. & Pol'y J. 285 (2010)

Rachel Cox, Psychological Harassment Legislation in Quebec: the First Five Years. 32 Comp. Lab. L. & Pol'y J. 55 (2010

Simone Cusack & Rebecca Cook, Stereotyping Women in the Health Sector: Lessons from CEDAW, 16 Wash. & Lee J. C.R. & Soc. Just. 47 (2009)

Molly Edwards, Note: The Conceivable Future of Pregnancy Discrimination Claims: Pregnancy Not Required, 4 Charleston L. Rev. 743 (2010)

Howard Eglit, Age Bias in the American Workplace – An Overview, 3 J. Int'l Aging L. & Pol'y 99 (2009)

Phillipp Fischinger, "Mobbing": The German Law of Bullying, 32 Comp. Lab. L. & Pol'y J. 153 (2010)

Monique Garcia, China's Labor Law Evolution: Towards a New Frontier, 16 ILSA J. Int'l & Comp. L. 235 (2009)

Susan Grover & Kimberley Piro, Consider the Source: When the Harasser Is the Boss, 79 Fordham L. Rev. 499 (2010)

Farhang Heydari, Note: Making Strange Bedfellows: Enlisting the Cooperation of Undocumented Employees in the Enforcement of Employer Sanctions, 110 Colum. L. Rev. 1526 (2010)

Helge Hoel & Stale Einarsen, The Swedish Ordinance Against Victimization at Work: A Critical Assessment. 32 Comp. Lab. L. & Pol'y J. 225 (2010)

Lillian Kim, Comment: Mandatory Retirement in the Private Sector: The Reach (Or Inapplicability) of the Age Discrimination in Employment Act Domestically and Abroad, 12 U. Pa. J. Bus. L. 1209 (2010)

Jessica Knouse, Restructuring the Labor Market to Democratize the Public Forum, 39 Stetson L. Rev. 715 (2010)

Ronald Kramer, High "C's" Ahead: Public Employer Collective Bargaining, Contractual and Constitutional Hurdles in Concessionary Bargaining, 42 Urb. Law. 739 (2010)

Catherine Lee & John Skrentny, Race Categorization and the Regulation of Business and Science, 44 Law & Soc'y Rev. 617 (2010)

Michael Leroy, Do Partisan Elections of Judges Produce Unequal Justice When Courts Review Employment Arbitrations? 95 Iowa L. Rev. 1569 (2010)

Yongdan Li, Applying the Doctrine of Unconscionability to Employment Arbitration Agreements, with Emphasis on Class Action/arbitration Waivers, 31 Whittier L. Rev. 665 (2010)

Loic Lerouge, Moral Harassment in the Workplace: French Law and European Perspectives, 32 Comp. Lab. L. & Pol'y J. 109 (2010)

Lippel,Katherine The Law of Workplace Bullying: an International Overview, 32 Comp. Lab. L. & Pol'y J. 1 (2010)

Li-Chuan Liuhuang & Felix Chengliang Chen,  A Review of  Ronald C. Brown, Understanding Labor and Employment Law in China, 32 Comp. Lab. L. & Pol'y J. 289 (2010)

Diego Lopez Fernandez, Legal Protection for Victims of Workplace Harassment in Chile, 32 Comp. Lab. L. & Pol'y J. 91 (2010)

Alicia Luke, Comment: Employment Discrimination Litigation: Social Science Evidence and a Solution for the Problem of Presumptions, 29 Temp. J. Sci. Tech. & Envtl. L. 75 (2010)

Richard McAdams, Economic Costs of Inequality, 2010 U. Chi. Legal F. 23

Martha McCluskey, How the Biological/Social Divide Limits Disability and Equality, 33 Wash. U. J.l. & Pol'y 109 (2010)

Anthony Marino, et alia, Disobedience and Authority, 26 J.L. Econ. & Org. 427 (2010)

Benton Martin, Comment: Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title VII, 59 Emory L.J. 1297 (2010)

Margitta Matzke, A Review of Hans-Werner Sinn, Can Germany Be Saved? The Malaise of the World's First Welfare State, 32 Comp. Lab. L. & Pol'y J. 293 (2010)

Muriel Morisey, Ffty Years after the Sit-Ins: Events, Trends, and Recommendations, 18 Va. J. Soc. Pol'y & L. 82 (2010)

Nicholas Neidzwski, Note: The Unconstitutionality of Mississippi's Employment Protection Act and a Framework for Assessing Similar State Immigration Employment Laws, 16 Wash. & Lee J. C.R. & Soc. Just. 225 (2009)

Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis under Title VII, 98 Geo. L.J. 1079 (2010)

Monique Payne-Pikus, et alia, Experiencing Discrimination: Race and Retention in America's Largest Law Firms, 44 Law & Soc'y Rev. 553 (2010)

Juan Perea, An Essay on the Iconic Status of the Civil Rights Movement and its Unintended Consequences, 18 Va. J. Soc. Pol'y & L. 44 (2010)

Steven Perlmutter, The Law of "Leased Worker" and "Temporary Worker" under a CGL Policy, 45 Tort Trial & Ins. Prac. L.J. 761 (2010)

Nicole Porter, Synergistic Solutions: an Integrated Approach to Solving the Caregiver Conundrum for "Real" Workers, 39 Stetson L. Rev. 777 (2010)

Henry Richardson, Two Treaties, and Global Influences of the American Civil Rights Movement Through the Black International Tradition, 18 Va. J. Soc. Pol'y & L. 59 (2010)

Kendra Rosenberg, Note: Location Surveillance by Gps: Balancing an Employer's Business Interest with Employee Privacy, 6 Wash. J. L. Tech. & Arts 143 (2010)

Kelly Sheridan, Comment: Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, 85 Wash. L. Rev. 517 (2010)

Sarah Shyr, Note: Speech Regulation: Why an Injunction Should Be Permissible under Workplace Discrimination but Is Problematic under Defamation, 16 Wash. & Lee J. C.R. & Soc. Just. 195 (2009)

Girardeau Spann, Disparate Impact, 98 Geo. L.J. 1133 (2010)

Joan Squelch & Robert Guthrie, The Australian Legal Framework for Workplace Bullying, 32 Comp. Lab. L. & Pol'y J. 15 (2010)

Symposium: The Law of Workplace Bullying, 32 Comp. Lab. L. & Pol'y J. 1 (2010)

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Khari Taustin, Still in 'The Jungle': Labor, Immigration, and the Search for a New Common Ground in the Wake of Iowa's Meatpacking Raids, 18 U. Miami Bus. L. Rev. 283 (2010)

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Manuel Velazquez, The Spanish Code of Practice on Work-related Bullying: Reflections on European Law and its Impact on a National Strategy for Labor Inspectors, 32 Comp. Lab. L. & Pol'y J. 185 (2010)

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Sarah Wolkinson, Comment: A Critical Historical and Legal Reappraisal of Bhatia v. Chevron U.S.A., Inc.: Judicial Emasculation of the Duty of Accommodation, 12 U. Pa. J. Bus. L. 1185 (2010)

David Yamada, Workplace Bullying and American Employment Law: A Ten-Year Progress Report and Assessment, 32 Comp. Lab. L. & Pol'y J. 251 (2010)

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