Labor and Employment Law News - January 2012

Labor and the Law: Current News and Information
from the LERA Section on Labor and Employment Law
(LEL) © 2012
Published since 1997

January 2012
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.

Supervisory Status Under the NLRA

            Only employees may vote in an NLRB election, and only employees are protected by the National Labor Relations Act. The Act specifically excludes supervisors from the definition of employee (Sec.2(3)). Determining who is an employee versus a supervisor requires applying Sec. 2(11).  Titles are not relevant. Rather, Sec. 2(11) defines supervisors as those who have specific listed powers (such as hiring, firing, and disciplining employees). It also requires that to be a supervisor, those person must having authority to exercise those powers “in the interest of the employer”.  The party that claims a person is a supervisor has the burden of proof. 

            A recent case raised the issue whether DirecTV “field supervisors” were employees or supervisors, as defined by the NLRA. If the field supervisors were supervisors their activities in support of the union before the petition for election was filed would require overturning the election, which the union had won. DirecTV, 357 NLRB No. 149 (Dec. 22, 2011)

            The issue was whether DirecTV field supervisors had authority to “effectively recommend discipline”. The Board majority found that the field supervisors did not possess supervisory authority and, as a result, their prounion activity was not objectionable conduct that was grounds for overturning the NLRB election results.

            The case provides an analysis that should be helpful for those dealing with similar issues. It describes the duties of the field supervisors in detail, focusing on their authority to issue verbal warnings. The field supervisors acted essentially as leaders, rather than supervisors. Although they could initiate a disciplinary process, they had no authority to issue disciplines directly to technicians. Rather, the disciplines were issued only after several levels of management review took place. The Board majority says, “The authority to ‘effectively recommend’ an action ‘generally means that the recommended action is taken without independent investigation by superiors, not simply that the recommendation is ultimately followed.’” The majority found that the evidence did not demonstrate that the field supervisors’ authority to recommend discipline met that standard. All field supervisor recommendations of discipline were reviewed at three levels and were subject to independent investigation.

            The dissent disagreed with these findings and contended that the field supervisors had authority to “use independent judgment in effectively recommending discipline” and that review of disciplines before issuing them does not necessarily mean that the field supervisors lacked the power to make effective recommendations.

            One reason the employer failed to prevail was that the majority found that it had failed to present evidence to support its claims about how disciplines were actually handled.

The Employee Polygraph Protection Act

            One of the less well known laws that affects the workplace is the Employee Polygraph Protection Act.  The EPPA can be violated by administering a polygraph test in violation of the EPPA’s specific limitations and procedures. One of those limits is “directly or indirectly, to require, request, suggest, or cause any employee to take or submit to any lie detector test.” As the court in this case says, “The EPPA defines employer as “including any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” In other words, the act defines employer agents broadly. Employers must take care to train their supervisors and agents about this law so that they do not inadvertently violate the law.   Sanchez v. Prudential Pizza, Inc., Case No.10 cv 6289 (N.D. Ill.Nov. 2, 2011).

            The EPPA and information about the law may be found here.

Employee or Independent Contractor

            The NLRB recently decided three cases in which it found musicians at three symphony orchestras were employees and not independent contractors. All three cases involved petitions for election. By finding the musicians to be employees of their respective orchestras, the Board majority found that the musicians have the right to vote whether they want to be represented by a union. The principal decision, and the only case to involve a full discussion of the musicians’ terms of work is Lancaster Symphony Orchestra, 357 NLRB No.152 (Dec. 27, 2011) The other decisions are

Cape Cod Symphony Orchestra, Inc., Case 1-RC-22338 (Dec. 28, 2011) and Plano Symphony Orchestra, Case 16-RC-10844 (Dec. 28, 2011)

            The principal case, Lancaster, provides a detailed analysis of the musicians’ work conditions. The Board examined nine factors: “(1) whether the putative employer has the right to control the manner and means of performance of the job; (2) whether the individual is engaged in a distinct occupation or business; (3) whether the individual bears entrepreneurial risk of loss and enjoys entrepreneurial opportunity for gain; (4) whether the employer or the individual supplies the instrumentalities, tools, and place of work; (5) the skill required in the particular occupation; (6) whether the parties believe they are creating an employment relationship; (7) whether the work is part of the employer’s regular business; (8) whether the employer is “in the business”; (9) the method of payment, whether by time or by the job; and (10) the length of time the individual is employed.  The discussion by the majority and dissent should be useful in analyzing other jobs that have a similar structure.

Web Links

Can’t Find a Job? Check Your Credit

PBGC Annual Report 2012

PBGC's 2011-2016 Strategic Plan

Stephanie Luce & Naoki Fujita, Retail Action Project, Discounted Jobs: How Retailers Sell Workers Short, 2012

NLRB OM 12-31 Report of the Acting General Counsel Concerning Social Media Cases January 24, 2012

NLRB OM 12-30 Cases Involving Employer Mandatory Arbitration January 23, 2012

NLRB OM 12-28 Draft Revised Pleadings Manual January 18, 2012

NLRB GC 12-01 Guideline Memorandum Concerning Collyer Deferral January 20, 2012

Government Accountability Office, Medicare Advantage: CMS Should Improve the Accuracy of Risk Score Adjustments for Diagnostic Coding Practices GAO-12-51, Jan 12, 2012

Government Accountability Office, Capitol Police: Retirement Benefits, Pay, Duties, and Attrition Compared to Other Federal Police Forces GAO-12-58, Jan 24, 2012

Government Accountability Office, Federal Employees' Compensation Act: Preliminary Observations on Fraud-Prevention Controls GAO-12-402, Jan 25, 2012

Government Accountability Office, Improved Policies and Tools Could Help Increase Competition on DOD's National Security Exception Procurements -12-263, Jan 13, 2012

Government Accountability Office, Health Care Quality Measurement - HHS Should Address Contractor Performance and Plan for Needed Measures GAO-12-136, Jan 13, 2012

Government Accountability Office, Elections - Views on Implementing Federal Elections on a Weekend, GAO-12-69, Jan 12, 2012

Government Accountability Office, Medicare Advantage - Changes Improved Accuracy of Risk Adjustment for Certain Beneficiaries GAO-12-52, Dec 9, 2011

Government Accountability Office, Race to the Top - Characteristics of Grantees' Amended Programs and Education's Review Process  GAO-12-228R, Dec 8, 2011

Government Accountability Office, Border Security - Additional Steps Needed to Ensure That Officers Are Fully Trained GAO-12-269, Dec 22, 2011

Emily R. Carrier, Tracy Yee and Lucy B. Stark, Matching Supply to Demand: Addressing the U.S. Primary Care Workforce Shortage,  National Institute for Health Care Reform December 20, 2011

U.S. Department of Labor, U.S. Bureau of Labor Statistics, Women in the Labor Force: A Databook  December 2011

Drew Liming and Dennis Vilorio, Work for play: Careers in video game development, Occupational Outlook Quarterly Fall 2011

Elka Maria Torpey, Paving the occupational path: A new system for assigning education and training, Occupational Outlook Quarterly  Fall 2011

H.R. 3533, The Invest in American Jobs Act of 2011, Introduced by The Honorable Nick J. Rahall, II, Ranking Democratic Member and Other Democratic Members of the Committee on Transportation and Infrastructure December 1, 2011

Colleen Teixeira Moffat, Helping those in need: Human service workers, Occupational Outlook Quarterly Fall 2011

Philip Mattera, Thomas Cafcas, Leigh McIlvaine, Andrew Seifter and Kasia Tarczynska, Money for Something: Job Creation and Job Quality Standards in State Economic Development Subsidy Programs, Good Jobs First  December, 2011

Greg LeRoy, Behind the Counter at BWI: Engine of Development or Pocket of Poverty? Good Jobs First November, 2011

The Decline of Labour Unions in the US: Labour unions are under fire across the US, but do they have enough vitality to fight back? Fault Lines, Al Jazeera News

The top 1%: With 1% of Americans controlling 40% of the country's wealth, we examine the gap between the rich and the rest, Fault Lines, Al Jazeera News

The Koch Brothers: People & Power asks if the tycoon duo's fortune could put the radical right into the White House, Al Jazeera People and Power

Institute on Taxation and Economic Policy, Building a Better Gas Tax: How to Fix One of State Government's Least Sustainable Revenue Sources,

Special Procedural Rules With Respect to Representation Cases Governing Periods When the National Labor Relations Board Lacks a Quorum of Members

NLRB, OM 12-14 Outreach Efforts Related to the Board's Notice Posting Rule, December 2, 2011

NLRB Press Release: Board adopts amendments to election case procedures December 21, 2011

Text of the NLRB Election Rule

Description of the new Election Rule Amendments

Comparison of the new NLRB Election Rule and the prior rule in track changes

NLRB, OM 11-74 Report of the Acting General Counsel Concerning Social Media Cases August 18, 2011

OSHA directive continues targeted inspection program for protecting federal workers, January 4, 2012

US Labor Department's OSHA orders Neb.-based Union Pacific Railroad Co. to

reinstate, pay more than $300,000 to terminated whistleblower employee in Idaho December 20, 2011

OSHA, 4,547 workers died on the job in 2010 (Latest BLS Census of Fatal Occupational Injuries)

Joyce Northwood, Assaults and Violent Acts in the Private Retail Trade Sector, 2003—2008, Bureau of Labor Statistics  December 7, 2011

Brian Mauersberger, Tracking Employment-Based Health Benefits in Changing Times, Bureau of Labor Statistics  January 27, 2012

Sherry Dalton, Erik Friesenhahn, James Spletzer, and David Talan, Employment growth by size class: comparing firm and establishment data, Monthly Labor Review

Janice Lent, Estimating an energy consumer price index from establishment survey data, Monthly Labor Review

Drew Liming and Dennis Vilorio, Work for play: Careers in video game development,  Occupational Outlook Quarterly

Elka Maria Torpey, Paving the occupational path: A new system for assigning education and training, Occupational Outlook Quarterly

Colleen Teixeira Moffat, Helping those in need: Human service workers, Occupational Outlook Quarterly

Recent Labor and Employment Law Articles

Bernard Adell, Resisting Lower Terms for Imported Workers: Laval-inspired Reflections on the Canadian Law, 32 Comp. Lab. L. & Pol'y J. 1023 (2011)

Benny Agosto, Lupe Salinas & Eloisa Morales Arteaga. "But Your Honor, He's an Illegal!" Ruled Inadmissible and Prejudicial: Can the Undocumented Worker's Alien Status Be Introduced at Trial? 17 Tex. Hispanic  L. J. & Pol'y 27 (2011)

Gordon Anderson, et alia, The Evolution of Labor Law in New Zealand: A Comparative Study of New Zealand, Australia, and Five Other Countries, 33 Comp. Lab. L. & Pol'y J. 137 (2011)

Dina Bakst & Phoebe Taubman, From the Great Depression to the Great Recession: Advancing Women's Economic Security Through Tough Economic Times and Beyond, 32 Women's Rts. L. Rep. 25 (2010)

Gian Guido Balandi, From Corporatism to Freedom of Association: A Note about Italy, 32 Comp. Lab. L. & Pol'y J. 925 (2011)

Kevin Banks, Trade, Labor and International Governance: An Inquiry into the Potential Effectiveness of the New International Labor Law, 32 Berkeley J. Emp. & Lab. L. 45 (2011)

Roger Baron, "Consumer Protection" and ERISA, 56 S.D. L. Rev. 405 (2011)

Oliver Beatty, Comment:  Workers' Compensation and Hoffman Plastic: Pandora's Undocumented Box, 55 St. Louis U. L. J. 1211 (2011)

Debra Burns, Note: Too Big to Fail and Too Big to Pay: States, Their Public-Pension Bills, and the Constitution. 39 Hastings Const. L.Q. 253 (2011)

Shannon Byrne, Note: Weaning Ohio Employers off of Lactation Discrimination: The Need for a Clear Interpretation of Ohio's Pregnancy Discrimination Act, 59 Clev. St. L. Rev. 265 (2011)

Marion Crain, Arm's-length Intimacy: Employment as Relationship, 35 Wash. U.  J.L. & Pol'y 163 (2011)

Bridget Crawford, The Currency of White Women's Hair in a down Economy, 32 Women's Rts. L. Rep. 45 (2010)

Ronald Davis, Balancing Competence and Representation: Trustees and Fiduciaries in the Era of Financial Engineering, 33 Comp. Lab. L. & Pol'y J. 49 (2011)

Alexander De Becker, The Legal Status of Public Employees or Public Servants: Comparing the Regulatory Frameworks in the United Kingdom, France, Belgium, and the Netherlands, 32 Comp. Lab. L. & Pol'y J. 949 (2011)

Deborah Demott, Investing in Work: Wilkes as an Employment Law Case, 33 W. New Eng. L. Rev. 497 (2011)

Michael Duff, Union Salts as Administrative Private Attorneys General, 32 Berkeley J. Emp. & Lab. L. 1 (2011)

Alek Felstiner,  Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry, 32 Berkeley J. Emp. & Lab. L. 143 (2011)

Matthew Finkin, The Death and Transfiguration of Labor Law, 33 Comp. Lab. L. & Pol'y J. 171 (2011)

Raymond Franklin, Note: Vesting Retirement Benefits: Revisiting Yard-man and its Unacknowledged Presumptions, 25 J. Civ. Rts. & Econ. Dev. 803 (2011)

Adam Gartner, Note: Protecting the ERISA  Whistleblower: The Reach of Section 510 of ERISA, 80 Fordham L. Rev. 235 (2011).

Ana Gomes & Mariana Prado, Flawed Freedom of Association in Brazil: How Unions Can Become an Obstacle to Meaningful Reforms in the Labor Law System, 32 Comp. Lab. L. & Pol'y J. 843 (2011)

Michael Grimaldi, Note: Disparate Impact after Ricci and Lewis, 14 Scholar 165 (2011)

Timothy Hancock, Comment: Apportionment Between Preexisting Conditions and Work-related Injuries: Why Wyoming Needs a Second Injury Fund, 11 Wyoming L. Rev. 525 (2011)

Roy Harmon, An Assessment of New Appeals and External Review Processes – ERISA  Claimants Get "Some Kind of Hearing," 56 S.D. L. Rev. 408 (2011)

Darren Heitner & Jason Wolf, In Baseball's Best Interest?: A Discussion of the October 2010 MLBPA Regulations Governing Player Agents, 10 Va. Sports & Ent. L. J. 249 (2011)

Frank Hendrickx, Beyond Viking and Laval: The Evolving European Context, 32 Comp. Lab. L. & Pol'y J. 1055 (2011)

Angela Herring, Note: Untangling the Twombly-McDonnell Knot: The Substantive Impact of Procedural Rules in Title VII Cases, 86 N.Y.U. L. Rev. 1083 (2011)

Stacy Hickox, Employer Liability for Negligent Hiring of Ex-Offenders, 55 St. Louis U. L. J. 1001 (2011)

Robert Hoskins, Equitable Estoppel as a Remedy under ERISA, 56 S.D. L. Rev. 456 (2011)

Elizabeth Hurwitz, Comment:  Out of the Shadows, Into the Light: Preventing Workplace Discrimination Against Medical Marijuana Users, 46 U.S.F. L. Rev. 249 (2011)

Peter Jacobson, Regulating the U.S. Health Care System: Adam Smith and the Limits of Law, 32 Hamline J. Pub. L. & Pol'y 333 (2011)

Adelaida Jasperse, Note: Constitutional Law--damned If You Do, Damned If You Don't: A Public Employee's Trilemma Regarding Truthful Testimony, 33 W. New Eng. L. Rev. 623 (2011)

Kevin Johnson, An Essay on the Nomination and Confirmation of the First Latina Justice on the U.S. Supreme Court: The Assimilation Demand at Work, 30 Chicana/o - Latina/o L. Rev. 97 (2011)

Matthew King, Indian Gaming and Native Identity, 30 Chicana/o - Latina/o L. Rev. 1 (2011)

Malena Kinsman,  Comment: Can You Hear Me? Will the Diminishing Scope of ERISA 's Anti-retaliation Provision Drown the Cries of Whistleblowers? 115 Penn St. L. Rev. 685 (2011)

Erika Kovacs, Hungarian Unions: How Representative? How Effective? 32 Comp. Lab. L. & Pol'y J. 891 (2011)

Jamie Longazel & Benjamin Fleury-Steiner, Exploiting Borders: The Political Economy of Local Backlash Against Undocumented Immigrants, 30 Chicana/o - Latina/o L. Rev. 43 (2011)

Nikita Lyutov, Freedom of Association: The Case of Russia, 32 Comp. Lab. L. & Pol'y J. 933 (2011)

Brian McCall, The Corporation as Imperfect Society, 36 Del. J. Corp. L. 509 (2011)

Shelley McGill & Ann Marie Tracey, Building a New Bridge over Troubled Waters: Lessons Learned from Canadian and U.S. Arbitration of Human Rights and Employment Discrimination Claims, 20 Cardozo J. Int'l & Comp. L. 1 (2011)

Martha McCluskey, Taxing the Family Work: Aid for Affluent Husband Care, 21 Colum. J. Gender & L. 109 (2011)

Christopher Meskill, Comment:  The Tenure Tax: Social Security Withholdings on Academic Retirement, 25 J. Civ. Rts. & Econ. Dev. 937 (2011)

David Millon, Two Models of Corporate Social Responsibility, 46 Wake Forest L. Rev. 523 (2011)

Kathryn Moore, An Overview of the U.S. Retirement Income Security System and the Principles and Values it Reflects, 33 Comp. Lab. L. & Pol'y J. 5 (2011)

Rachel Moroski, Comment:  Desperate Times Don't Always Call for Desperate Measures: Professional Engineers v. Schwarzenegger Through the Lens of the Contract Clause, 46 U.S.F.L. Rev. 183 (2011)

John Morrison & Jonathan McDonald, Exorcising Discretion: The Death of Caprice in ERISA  Claims Handling, 56 S.D. L. Rev. 482 (2011)

Dana Muir, Building Value in the Australian Defined Contribution System: A Values Perspective, 33 Comp. Lab. L. & Pol'y J. 93 (2011)

Scott Murray, Comment: Hoffman, its Progeny, and the Status of Undocumented Workers, 11 Wyoming L. Rev. 615 (2011)

Jose Padilla, California Rural Legal Assistance: The Struggles and Continued Survival of a Poverty Law Practice, 30 Chicana/o - Latina/o L. Rev. 163 (2011)

Miles Palley, Note: Ontario V. Quon: in Search of a Reasonable Fourth Amendment, 26 Berkeley Tech. L. J. 859 (2011)

Radha Pathak, Discretionary Clause Bans & ERISA  Preemption, 56 S.D. L. Rev. 500 (2011)

Kimberly Phillips, Promulgating Conscience: Drafting Pharmacist Conscientious Objector Clauses That Balance a Pharmacist's Moral Right to Refuse to Dispense Medication with Non-beneficiaries' Economic and Legal Rights, 15 Mich. St. U. J. Med. & L. 227 (2011)

Michael Prasad, Note: Immigration and Labor Law -- We Need Your Help! But It's Gonna Cost You: Arriaga, Castellanos-Contreras, and Why the Point of Hire Fees Should Be Paid by the Employer, 33 W. New Eng. L. Rev. 817 (2011)

Robert Rains, DOMA and the Social Security Act: An Odd Couple Begetting Disfavored Children, 55 St. Louis U. L. J. 811 (2011)

Kavita Ramakrishnan, Note: Inconsistent Legal Treatment of Unwanted Sexual Advances: A Study of the Homosexual Advance Defense, Street Harassment, and Sexual Harassment in the Workplace, 26 Berkeley J. Gender L. & Just. 291(2011)

Deborah Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Geo. J. Legal Ethics 1041 (2011)

Nick Robinso & Gauri Varun, Education, Labor Rights, and Incentives: Contract Teacher Cases in the Indian Courts, 32 Comp. Lab. L. & Pol'y J. 991 (2011)

Laura A. Rosenbury, Working Relationships, 35 Wash. U.  J.L. & Pol'y 117 (2011)

Paul Secunda, The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans on the Brink, 21 Cornell  J.L. & Pub. Pol'y 77 (2011)

David Silverman, Green Transportation: Roadblocks and Avenues for Promoting Low-Impact Transportation Choices, 43 Urb. Law. 775 (2011)

Steven Sizemore, Comment: A Fatter Butt Equals a Skinnier Wallet: Why Workplace Wellness Programs Discriminate Against the Obese and Violate Federal Employment Law, 11 Wyoming L. Rev. 639 (2011)

Peter Stris & Victor O'Connell, Enforcing ERISA, 56 S.D. L. Rev. 515 (2011)

Charles Sullivan, Mastering the Faithless Servant? Reconciling Employment Law, Contract Law, and Fiduciary Duty, 2011 Wis. L. Rev. 777

Itai Svirski, Moving to Bottom-up Representation: A Comment on Gomes and Prado, "Flawed Freedom of Association in Brazil," from the Perspective of the Developing New Unionism in Israel, 32 Comp. Lab. L. & Pol'y J. 915 (2011)

Symposium on the Employee Retirement Security Act of 1974, 56 S.D. L. Rev. 405 (2011)

Symposium: "Competing Conceptions of Representational Legitimacy", 32 Comp. Lab. L. & Pol'y J. 841 (2011)

Symposium: American Association of Law Schools Section on Employee Benefits and Executive Compensation,  33 Comp. Lab. L. & Pol'y J. 1 (2011)

Amy Thompson, Note: Ask and You Shall Receive: ERISA 's Remedies for Non-disclosure, 56 S.D. L. Rev. 524 (2011)

Tiffany Timmerman, Note: Hardt v. Reliance Standard Life Insurance Co.: Breathing New Life into Claimant's Ability to Obtain Attorney's Fees under ERISA 's Civil Enforcement Provision, 56 S.D. L. Rev. 549 (2011)

Ronald Turner, Employment Law, 64 SMU L. Rev. 221 (2011)

Katherine Vukadin, Delayed and Denied: Toward an Effective ERISA  Remedy for Improper Processing of Healthcare Claims, 11 Yale J. Health Pol'y L. & Ethics 331 (2011)

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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.

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