Labor and Employment Relations Association
Labor and Employment Law News - July 2011
The full text of many cases is now available free on-line. Where that is the case, links are provided.
Several of the cases discussed this month concern rights related to information.
Employee Rights to Discuss Their Working Conditions
One of employees’ basic rights under the National Labor Relations Act is to discuss their terms and conditions of work. A recent case involving an employee working for a temporary employment agency provides an example of those rights. NLS Group. NLRB v. Northeastern Land Services, Ltd., d/b/a The NLS Group, Case No.10-2156 (1st Cir. June 22, 2011) http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2156P.01A
The employment agency required its employees to sign a contract that said the employee understood “that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.” In this case, an employee complained to NLS about various workplace problems, including contractors’ failures to pay and reimburse him for various work expenses and failure to provide promised reimbursement for using his own equipment for the project.
When the problems were not resolved, the employee sent an email to everyone working on the same project. A week later, the employee was told he was being terminated because he had failed to live up to his end of the bargain. During his state wage payment hearing, his employer said the employee had been fired because he has failed to live up to his end of the bargain when he told others about not being paid. The employee then filed an unfair labor practice charge alleging that the employer had violated section 8(a)(1) of the NLRA by (1) maintaining and enforcing an unlawful confidentiality clause in its employment contract and (2) discharging the employee for violating an unlawful confidentiality clause.
The NLRB held that the confidentiality provision was unlawful because employees might believe that it prohibited activity the NLRA protected. The Board also found that discharging the employee under the illegal rule violated the NLRA.
The employer raised defenses to both violations on appeal. The court’s discussion is well worth reading in full. Among other things, the court of appeals reviewed Supreme Court and other decisions that held that the right to self-organize depends on employees’ right to communicate with one another about working conditions and that an illegal rule tends to chill employees’ exercise of their NLRA rights and violates the law.
Whistleblower Protections
It is not surprising that employees who might want to blow the whistle on employer actions would also want to conceal who it was who blew the whistle, for fear of being fired or disciplined. However, being public is more likely to protect a whistle-blowing employee who is disciplined or discharged, because it is easier to prove that the employer had a motive to retaliate against the employee. A recent Michigan case is a good example of the consequences of not being public. Hughes v. Sheridan Books, Inc., Case No.295118 (Mich. Ct. App. May 17, 2011). http://www.michbar.org/opinions/appeals/2011/051711/48833.pdf
The employee was concerned about employee safety during a construction project at her workplace. She twice asked her husband to contact MIOSHA (Michigan OSHA) about the problems. Each time a MIOSHA representative called the employer about the complaints and explained that the complaints had been made by someone who was not an employee. Three days after the second call, the plaintiff was fired for insubordination, unbecoming conduct, and a negative attitude.
Management had suspected that she had made the complaint because she was overheard making complaints at work about the same problems. However, her case was dismissed because she could not prove any connection between the complaint and her discharge, because she could not prove that her employer knew she had complained. As a result, the plaintiff could not show a prima facie case of retaliatory discharge or that the reasons given for her termination were a pretext.
The dissent, however, contended that dismissal was improper because the plaintiff had demonstrated that a question of fact existed as to whether the employer’s reason for her discharge was a pretext. She had presented evidence that a manager had overheard her call to her husband complaining about safety, that management meetings discussed the identity of the complainant, that after MIOSHA contacted it, her employer it had her email monitored, and her termination did not follow the employer’s personnel rules by failing to offer her a chance for rehabilitation.
Union Rights to Information
Part of an employer’s duty to bargain in good faith under the NLRA is the duty to provide information that is requested by the union and that is relevant to the union’s performance of its duties to the employees it represents. In a recent D.C. Circuit Court case, a union had evidence that nurse-practitioners who were not employees of the hospital were doing nurses’ work. The union filed a grievance that the nurse-practitioners were doing bargaining unit work. The hospital refused to provide information requested by the union concerning the nurse-practitioners on the grounds that the nurse-practitioners were not hospital employees or under the hospital’s control. The union then filed a charge that the hospital’s refusal to provide the information violated the NLRA. New York & Presbyterian Hospital v. NLRB, Case No.10-1278 (D.C. Cir. June 14, 2011
The court said that unions have a right to information that is needed to perform their duties, including ensuring that the employer is performing its obligations under the collective bargaining agreement. When information is requested about employees outside the bargaining unit, the union must show how the information is relevant to the unions’s duties. In this case, the court found, the information was relevant to the union’s obligation to police obligations under the parties’ collective bargaining agreement. The decision also discusses several defenses raised by the hospital.
Equitable Tolling
Rules are rules, and failing to meet time limits for filing lawsuits has consequences. But there can be exceptions. A recent case involving a claim under the Americans with Disabilities Act shows the operation of one such exception – equitable tolling – and provides a special window into how our legal system operates. Morris v. Lowe's Home Centers, Inc., Case No.1:10-cv-388 (M.D.N..Car. June 13, 2011).
Equitable tolling is part of the system of equity that, with statutes and the common law, are components of our legal system. Briefly, equity developed centuries ago in the English religious courts to provide relief that was not available through the common law court system. In some cases the common law did not provide any way to deal with a problem, and in others it had no useful remedies. For example, the common law’s remedies tended to be paying money to make an injured person whole. However, money damages are not useful in all situations, for example when what is needed is an order stopping some action. Injunctions is an example of common remedy today that was developed through the system of equity. Equity shows its birth in the church courts, because it asks whether a party deserves a remedy, for example, it says, “One seeks equity must do equity.” In this case, it asks whether a party seeking help from the court has “clean hands”.
In this case, the defendant filed a motion to dismiss the plaintiff’s ADA claim because the plaintiff had not filed her claim with the EEOC on time. Under the common law system, her case should be dismissed. However, the court found that equitable tolling should save her case. Here is what the court said: “The uncontradicted evidence shows that Ms. Morris diligently attempted to file a charge of discrimination with the EEOC well before the last possible deadline under the ADA. If the EEOC had promptly scheduled an interview and assisted in the preparation of the charge, Ms. Morris would have satisfied the statutory filing deadline. Because the EEOC’s delay constituted an extraordinary circumstance that was beyond Ms. Morris’s control and made it impossible for her to file the charge on time, equity demands the tolling of the 180-day filing period as of the date of Ms. Morris’s initial visit to the EEOC. Thus, the charge is deemed timely and Lowe’s is not entitled to summary judgment as to the timeliness of the EEOC charge.”
Striker Replacements and the WARN Act
Generally, employers are allowed to hire replacement workers for employees who have gone on strike. This case involves the question what legal rights those replacements have to those jobs? The basic answer is that they have the rights of at-will employees. That is, they can be fired for a good, bad, or no reason. This is true even if they have been promised permanent jobs.
A recent case from the 8th Circuit Court of Appeals discusses whether striker replacements have rights to compensation under the Worker Adjustment and Retraining Notification (WARN) Act when they are fired when the strikers return to work. To qualify for WARN Act compensation there must be a “mass layoff”, as defined in the WARN Act, and the employees who are terminated must not have been given the 60 day notice of termination required by the WARN Act..
The court held that when striker replacements are fired because the strikers have returned to work, no mass layoff has taken place and the employer owes no compensation to the terminated replacements. Sanders v. Kohler Company, Case No.10-1848 (8th Cir. June 8, 2011) http://www.ca8.uscourts.gov/opndir/11/06/101848P.pdf
In enacting the WARN Act, Congress was concerned with the effects that mass layoffs or plant closings have on communities. The court in this case faced a challenge, because the WARN Act does not define key terms, such as “reduction in force”, “employment loss”, or the situation in this case. The court found two possible interpretations of “employment loss”: 1. the number of employees who lost their jobs or 2. whether there was any net loss of jobs. The 8th Circuit adopted the reasoning of the 6th Circuit: “employees who are fired but replaced are not part of a reduction in force and do not count as part of the aggregate number of employee layoffs that must be met to satisfy the numerosity thresholds of § 2101(a)(3). When a company fires one worker and replaces him with another, there is no net loss in the number of employees and no “reduction in force” as the term is commonly understood.”
Web Links
Proposed Amendments to NLRB Election Rules and Regulations - Fact Sheet June 21, 2011 http://www.nlrb.gov/node/525
NLRB Division of Operations-Management OM 11-62 Updated Procedures in Addressing Immigration Staus Issues that Arise During NLRB Proceedings June 7, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d458049525b
NLRB Division of Operations-Management OM 11-61 Financial Remedies and Other Settlement Terms Audit OIG-AMR-63 June 3, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d458048c341
NLRB Division of Operations-Management OM 11-67 Updated Chart Showing Notice Posting Deadline Dates June 21, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d458050eede
Attachment 1 Calculation Chart 2011-12 http://mynlrb.nlrb.gov/link/document.aspx/09031d458050f086
National Association of Insurance Commissioners (NAIC), NAIC Addresses Questions about Health Care Reform http://www.naic.org/index_health_reform_section.htm
Robert Wood Johnson Foundation links to reports related to health care coverage
http://www.rwjf.org/coverage/
Urban Institute, "The Effects of Health Reform on Small Employers and Their Workers" and other studies on health coverage http://www.urban.org/health_policy/
Sandeep C Kulkarni, Alison Levin-Rector, Majid Ezzati and Christopher JL Murray, Falling Behind: Life Expectancy in US Counties from 2000 to 2007 in an International Context, Population Health Metrics 2011, 9:16, Institute for Health Metrics and Evaluation http://www.pophealthmetrics.com/content/pdf/1478-7954-9-16.pdf
National State Attorneys General Program at Columbia Law School, Enforcement of State Wage and Hour Laws: A Survey of State Regulators (April 5, 2011) http://www.law.columbia.edu/null?&exclusive=filemgr.download&file_id=551819&rtcontentdisposition=filename%3DWage%20and%20Hour%20Report%20FINAL.pdf
111th Congress Oversight Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform., H.R. 735 and Project Labor Agreements: Restoring Competition and Neutrality to Government Construction Projects June 3, 2011 http://oversight.house.gov/index.php?option=com_content&view=article&id=1142%3A111th-congress-oversight-subcommittee-on-technology-information-policy-intergovernmental-relations-and-procurement-reform&catid=14&Itemid=22
House Hearing on Social Security’s Finances June 23, 2011
http://waysandmeans.house.gov/News/DocumentSingle.aspx?DocumentID=247227
Witness List and links to testimony http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=247231
House Hearing on the 2011 Medicare Trustees Report and Witness list with links June 22, 2011
http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=244982
http://waysandmeans.house.gov/News/DocumentSingle.aspx?DocumentID=244984
U.S. Green Building Council, Real Estate Roundtable, Natural Resources Defense Council, Political Economy
Research Institute, 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
76 FR 34300 - Securities Whistleblower Incentives and Protections
http://www.gpo.gov/fdsys/pkg/FR-2011-06-13/pdf/2011-13382.pdf
http://www.gpo.gov/fdsys/pkg/FR-2011-06-13/html/2011-13382.htm
House Committee on Oversight and Government Reform, Official Time: Good Value for the Taxpayer? June 1, 2011 http://oversight.house.gov/index.php?option=com_content&view=article&id=1307%3A6-1-11-qoffical-time-good-value-for-the-taxpayerq&catid=15&Itemid=26
House Committee on Oversight and Government Reform, Rightsizing the Federal Workforce May 26, 2011 http://oversight.house.gov/index.php?option=com_content&view=article&id=1300%3A5-26-11-qrightsizing-the-federal-workforceq&catid=15&Itemid=26
Federal Labor Relations Authority, FLRA Significantly Enhances Ability to Research Authority Decisions (June 6, 2011) http://www.flra.gov/webfm_send/504
Fred B. Kotler, Project Labor Agreements in New York State II: In the Public Interest and of Proven Value
http://digitalcommons.ilr.cornell.edu/reports/36/
http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1035&context=reports
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
Government Accountability Office, Defense Infrastructure: The Enhanced Use Lease Program Requires Management Attention GAO-11-574, Jun 30, 2011 http://www.gao.gov/new.items/d11574.pdf
Government Accountability Office, Medicaid and CHIP: Most Physicians Serve Covered Children but Have Difficulty Referring Them for Specialty Care GAO-11-624, Jun 30, 2011 http://www.gao.gov/new.items/d11624.pdf
Government Accountability Office, Public Transportation: Washington Metro Could Benefit from Clarified Board Roles and Responsibilities, Improved Strategic Planning GAO-11-660, Jun 30, 2011 http://www.gao.gov/new.items/d11660.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, Recovery Act: Funding Used for Transportation Infrastructure Projects, but Some Requirements Proved Challenging GAO-11-600, Jun 29, 2011 http://www.gao.gov/new.items/d11600.pdf
Government Accountability Office, Recovery Act: Funds Supported Many Water Projects, and Federal and State Monitoring Shows Few Compliance Problems GAO-11-608, Jun 29, 2011 http://www.gao.gov/new.items/d11608.pdf
Government Accountability Office, Influenza Pandemic: Lessons from the H1N1 Pandemic Should Be Incorporated into Future Planning GAO-11-632, Jun 27, 2011 http://www.gao.gov/new.items/d11632.pdf
Government Accountability Office, Influenza Vaccine: Federal Investments in Alternative Technologies and Challenges to Development and Licensure GAO-11-435, Jun 27, 2011 http://www.gao.gov/new.items/d11435.pdf
Government Accountability Office, Bank Regulation: Modified Prompt Corrective Action Framework Would Improve Effectiveness GAO-11-612, Jun 23, 2011 http://www.gao.gov/new.items/d11612.pdf
Government Accountability Office, Federal Grants: Improvements Needed in Oversight and Accountability Processes GAO-11-773T, Jun 23, 2011 http://www.gao.gov/new.items/d11773t.pdf
Government Accountability Office, Flood Insurance: Public Policy Goals Provide a Framework for Reform GAO-11-670T, Jun 23, 2011 http://www.gao.gov/new.items/d11670t.pdf
Government Accountability Office, GAO Human Capital Management: Efforts Taken to Ensure Effective Campus Recruitment GAO-11-615T, Jun 21, 2011 http://www.gao.gov/new.items/d11615t.pdf
Government Accountability Office, Military Cash Incentives: DOD Should Coordinate and Monitor Its Efforts to Achieve Cost-Effective Bonuses and Special Pays GAO-11-631, Jun 21, 2011 http://www.gao.gov/new.items/d11631.pdf
Government Accountability Office, Public Radio and the Role of Federal Fundinghttp://www.gao.gov/new.items/d11669r.pdf GAO-11-669R, May 19, 2011 http://www.gao.gov/new.items/d11669r.pdf
Government Accountability Office, ACORN: Federal Funding and Monitoring [Reissued on June 17, 2011 GAO-11-484, Jun 14, 2011 http://www.gao.gov/new.items/d11484.pdf
Government Accountability Office, Mentor-Protege Programs Have Policies That Aim to Benefit Participants but Do Not Require Postagreement Tracking GAO-11-548R, Jun 15, 2011 http://www.gao.gov/new.items/d11548r.pdf
Government Accountability Office, U.S. Postal Service: Dire Financial Outlook and Changing Mail Use Require Network Restructuring GAO-11-759T, Jun 15, 2011 http://www.gao.gov/new.items/d11759t.pdf
Government Accountability Office, Disability Insurance: Preliminary Observations on SSA Efforts to Detect, Prevent, and Recover Overpayments GAO-11-756T, Jun 14, 2011 http://www.gao.gov/new.items/d11756t.pdf
Government Accountability Office, Private Health Insurance: Waivers of Restrictions on Annual Limits on Health Benefits GAO-11-725R, Jun 14, 2011 http://www.gao.gov/new.items/d11725r.pdf
Government Accountability Office, Veterans' Health Care Budget Estimate: Changes Were Made in Developing the President's Budget Request for Fiscal Years 2012 and 2013 GAO-11-622, Jun 14, 2011 http://www.gao.gov/new.items/d11622.pdf
Government Accountability Office, Private Pensions: Little Information Available on Qualified Supplemental Executive Retirement Plans GAO-11-533R, May 12, 2011 http://www.gao.gov/new.items/d11533r.pdf
Government Accountability Office, VA Health Care: Improvements Needed for Monitoring and Preventing Sexual Assaults and Other Safety Incidents GAO-11-736T, Jun 13, 2011 http://www.gao.gov/new.items/d11736t.pdf
Government Accountability Office, Veterans' Reemployment Rights: Steps Needed to Ensure Reliability of DOL and Special Counsel Demonstration Project's Performance Information GAO-11-312R, Jun 10, 2011 http://www.gao.gov/new.items/d11312r.pdf
Government Accountability Office, Health Care Fraud and Abuse Control Program: Improvements Needed in Controls over Reporting Deposits and Expenditures GAO-11-446, May 10, 2011 http://www.gao.gov/new.items/d11446.pdf
Government Accountability Office, VA Health Care: Actions Needed to Prevent Sexual Assaults and Other Safety Incidents GAO-11-530, Jun 7, 2011 http://www.gao.gov/new.items/d11530.pdf
Government Accountability Office, Defense Health Care: DOD Lacks Assurance That Selected Reserve Members Are Informed about TRICARE Reserve Select GAO-11-551, Jun 3, 2011 http://www.gao.gov/new.items/d11551.pdf
Government Accountability Office, Defense Health Care: Access to Civilian Providers under TRICARE Standard and Extra GAO-11-500, Jun 2, 2011 http://www.gao.gov/new.items/d11500.pdf
Government Accountability Office, Taxes and Identity Theft: Status of IRS Initiatives to Help Victimized Taxpayers GAO-11-721T, Jun 2, 2011 http://www.gao.gov/new.items/d11721t.pdf
Subcommittee on Health, Employment, Labor and Pensions, Corporate Campaigns and the NLRB: The Impact of Union Pressure on Job Creation, May 26, 2011 http://edworkforce.house.gov/Calendar/EventSingle.aspx?EventID=242129
Office of the NLRB General Counsel, Division of Operations-Management Memorandum Submission to Advice of Information Cases in Relocation Situations, OM 11-58, May 10, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d4580479616
Adrienne Cruz and Sabine Klinger, Gender-based violence in the world of work: Overview and selected annotated bibliography, ILO, May 2011 http://www.ilo.org/wcmsp5/groups/public/---dgreports/---gender/documents/publication/wcms_155763.pdf
New Measures to Protect Migrant Workers, ILO, 25 May 2011 http://www.ilo.org/global/about-the-ilo/press-and-media-centre/press-releases/WCMS_155793/lang--en/index.htm
Equality at work: The continuing challenge - Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work ILO, May 2011 http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_154779.pdf
Women and labour markets in Asia: Rebalancing for gender equality, ILO, Asian Development Bank, May 2011 http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/documents/publication/wcms_154846.pdf
OSHA's Campaign to Prevent Heat Illness in Outdoor Workers
http://www.osha.gov/SLTC/heatillness/index.html
Monthly Labor Review May 2011 http://www.bls.gov/opub/mlr/2011/05/mlr201105.pdf
Global Employment Trends 2011: The challenge of a jobs recovery ILO http://www.ilo.org/public/libdoc/ilo/P/09383/09383(2010-99-1C)43.pdf
MSPB, "Women in the Federal Government: Ambitions and Achievements" (5/24/2011) http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=606767&version=608609&application=ACROBAT
Berger-Marks Foundation Grants Information http://bergermarks.org/grants/index.php
The Partnership for Public Service and Grant Thornton LLP, A Critical Role at a Critical Time: A Survey of Performance Improvement Officers http://ourpublicservice.org/OPS/publications/download.php?id=160
EEOC Meeting of June 8, 2011 on the Use of Leave As a Reasonable Accommodation http://www.eeoc.gov/eeoc/meetings/6-8-11/index.cfm
EEOC Meeting of March 15, 2011 - Employment of People with Mental Disabilities http://www.eeoc.gov/eeoc/meetings/3-15-11/index.cfm
U.S. Office of Personnel Management, Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace http://www.opm.gov/diversity/Transgender/Guidance.asp
Workplace Options, Work-Life Balance and Workplace Trend Polls http://www.workplaceoptions.com/polls.asp
Professional Musicians Local 47 (Los Angeles) Radio - Program Schedule
http://promusic47.org//promusic47radio.htm
Recent Labor and Employment Law Articles
Janet Ainsworth, Language, Power, and Identity in the Workplace: Enforcement of 'English Only' Rules by Employers, 9 Seattle J. for Soc. Just. 233 (2010)
Cheryl Anderson & Leonard Gross, Discrimination Claims Against Law Firms: Managing Attorney-Employees from Hiring to Firing, 43 Tex. Tech. L. Rev. 515 (2011)
Jessica Barclay-Strobel, Comment: Shooting the Messenger: How Enforcement of FLSA and ERISA Is Thwarted by Courts' Interpretations of the Statutes' Anti-Retaliation and Remedies Provisions, 58 UCLA L. Rev. 521 (2010)
Joshua Booth & Larry Palmer, ERISA Preemption Doctrine as Health Policy, 39 Hofstra L. Rev. 59 (2010)
Nathaniel Boulton, Establishing Causation in Iowa Workers' Compensation Law: An Analysis of Common Disputes over the Compensability of Certain Injuries, 59 Drake L. Rev. 463 (2011)
Jennifer Brooke & Tom Tyler, Diversity and Corporate Performance: A Review of the Psychological Literature, 89 N.C. L. Rev. 715 (2011)
Lissa Broome, et alia, Dangerous Categories: Narratives of Corporate Board Diversity. 89 N.C. L. Rev. 759 (2011)
Christopher Brown, Incorporating Third-party Benefits into the Cost-Benefit Calculus of Reasonable Accommodation, 18 Va. J. Soc. Pol'y & L. 319 (2011)
Mark Burdon, Contextualizing the Tensions and Weaknesses of Information Privacy and Data Breach Notification Laws, 27 Santa Clara Computer & High Tech. L.J. 63 (2011)
Kristina Campbell, The High Cost of Free Speech: Anti-solicitation Ordinances, Day Laborers, and the Impact of "Backdoor" Local Immigration Regulations, 25 Geo. Immigr. L.J. 1 (2010)
Eric Chason, Redressing All ERISA Fiduciary Breaches under Section 409(a), 83 Temp. L. Rev. 147 (2010)
Carolyn Coda, Comment: The Battle Between Privacy and Policy in Quon v. City of Ontario: Employee Privacy Rights and the Operational Realities of the Workplace on Display at the Supreme Court, 19 Commlaw Conspectus 211 (2010)
James Coleman, Different Strokes for Different Folks: A Different Standard Is Not Inherently a Double Standard, 89 N.C. L. Rev. 1003 (2011)
Susan Coleman & Alicia Robb, Sources of Funding for New Women-Owned Firms, 32 W. New Eng. L. Rev. 497 514 (2010)
Alicia Crawford, Comment: The Evolution of the Applicability of ERISA to Indian Tribes: We May Finally Have Congressional Intent, but It's Still Flawed, 34 Am. Indian L. Rev. 259 (2009-2010)
Bernardo Cuadra, Note: Family Law – Maternal and Joint Custody Presumptions for Unmarried Parents: Constitutional and Policy Considerations in Massachusetts and Beyond, 32 W. New Eng. L. Rev. 599 (2010)
Nicole Dandridge, Racial Etiquette and Social Capital: Challenges Facing Black Entrepreneurs, 32 W. New Eng. L. Rev. 471 (2010)
Deborah Demott, The Milieu of the Boardroom and the Precinct of Employment 89 N.C. L. Rev. 749 (2011)
Matthew Dimick, Revitalizing Union Democracy: Labor Law, Bureaucracy, and Workplace Association, 88 Denv. U. L. Rev. 1 (2010)
Frank Dobbin & Jiwook Jung, Corporate Board Gender Diversity and Stock Performance: The Competence Gap or Institutional Investor Bias? 89 N.C. L. Rev. 809 (2011)
Madeline Engel, Note: Defiiling the Retaliation Doctrine: Kasten v. Saint-Gobain and the Anti-Retaliation Provision of the Fair Labor Standards Act. 86 Chi.-Kent. L. Rev. 351 (2011)
Lisa Fairfax, Board Diversity Revisited: New Rationale, Same Old Story? 89 N.C. L. Rev. 855 (2011)
Daniel Faltas, Note: Beyond the Burqa, Beyond the Camouflage: The Inclusion of Female Combatants in the U.S. Military as Legally and Culturally Imperative to Winning the War Against Terrorism in Afghanistan, 12 Rutgers Race & L. Rev. 99 (2011)
Mary Fan, Post-Racial Proxies: Resurgent State and Local Anti-"Alien" Laws and Unity-Rebuilding Frames for Antidiscrimination Values, 32 Cardozo L. Rev. 905 (2011)
James Fanto, et alia, Justifying Board Diversity, 89 N.C. L. Rev. 901 (2011)
Anders Frederiksen & Elod Takats, Promotions, Dismissals, and Employee Selection: Theory and Evidence, 27 J.L. Econ. & Org. 159 (2011)
Courtney Glickman, Comment: Jon & Kate Plus . . . Child Entertainment Labor Law Complaints, 32 Whittier L. Rev. 147 (2010)
Adam Gorzelsky, Note: The Employee Free Choice Act: Breathing New Life into Unions or Dead in the Water? 72 U. Pitt. L. Rev. 147 (2010)
Eve Grina, Note: Mainstreaming Gender in Rule of Law Initiatives in Post-Conflict Settings, 17 Wm. & Mary J. Women & L. 435 (2011)
Sovereign Hager, Note: Farm Workers and Forced Labor: Why Including Agricultural Guest Workers in the Migrant and Seasonal Worker Protection Act Prevents Human Trafficking, 38 Syracuse J. Int'l L. & Com. 173 (2010)
Noah Hall, Interstate Water Compacts and Climate Change Adaptation, 5 Envtl. & Energy L. & Policy J. 237 (2010)
Reyna Hayashi, Note: Empowering Domestic Workers Through Law and Organizing Initiatives, 9 Seattle J. for Soc. Just. 487 (2010)
William Herbert, Card Check Labor Certification: Lessons from New York, 74 Alb. L. Rev. 93 (2010/2011)
Thomas Hazen, Diversity on Corporate Boards: Limits of the Business Case and the Connection Between Supporting Rationales and the Appropriate Response of the Law, 89 N.C. L. Rev. 887 (2011)
Zoe Hutchinson, Note: The Right to Freedom of Association in the Workplace: Australia's Compliance with International Human Rights Law, 27 UCLA Pac. Basin L.J. 119 (2010)
Derek Hines, Comment: Should Using Facebook at Work Be a Federal Crime? The Third Circuit Applies Honest Services Fraud to Private Individuals, 55 Vill. L. Rev. 1007 (2010)
Stephanie Hurst, Note: "Trade in Force": The Need for Effective Regulation of Private Military and Security Companies, 84 S. Cal. L. Rev. 447 (2011)
Lori Jablczynski, Note: Striking a Balance Between the "Parental" Wall and Workplace Equality: The Male Caregiver Perspective, 31 Women's Rts. L. Rep. 309 (2010)
Regina Kaley, Can Taxpayers Stand Discrimination? Lack of Standing and the Religious Freedom Restoration Act Permits the Executive Branch to Fund Discrimination Within Religious Organizations, 49 J. Cath. Legal Stud. 195 (2010)
Arlene Kanter, The Law: What's Disability Studies Got to Do with it or an Introduction to Disability Legal Studies, 42 Colum. Hum. Rts. L. Rev. 403 (2011)
Sung Hui Kim, The Diversity Double Standard, 89 N.C. L. Rev. 945 (2011)
Donald Langevoort, Puzzles about Corporate Boards and Board Diversity, 89 N.C. L. Rev. 841 (2011)
Ernest Lidge, Disparate Treatment Employment Discrimination and an Employer's Good Faith: Honest Mistakes, Benign Motives, and Other Sincerely Held Beliefs, 36 Okla. City U. L. Rev. 45 (2011)
Jiefeng Lu, Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in China, 10 Rich. J. Global L. & Bus. 211 (2011)
Dane Martin, The Employees' Decade: Recent Developments under the MHRA and the Employers' Potential Rebound, 75 Mo. L. Rev. 1349 (2010)
Jill Maxwell, Unifying Title VII and Labor Law to Expand Working Class Women's Access to Non-Traditional Occupations, 11 Geo. J. Gender & L. 681 (2010)
Katie Maxwell, Comment: Blowing the Whistle Falls on Deaf Ears: Revamping Texas's Whistleblower Jurisprudence by Applying the Lessons of Garcetti and Sarbanes-Oxley, 43 Tex. Tech. L. Rev. 647 (2011)
Jaclyn Millner& Gregory Duhl, Social Networking and Workers? Compensation Law at the Crossroads, 31 Pace L. Rev. 1 (2011)
Dina Mishra, Child Labor as Involuntary Servitude: The Failure of Congress to Legislate Against Child Labor Pursuant to the Thirteenth Amendment in the Early Twentieth Century, 63 Rutgers L. Rev. 59 (2010)
Amy Monahan & Daniel Schwarcz, Will Employers Undermine Healthcare Reform by Dumping Sick Employees? 97 Va. L. Rev. 125 (2011)
Seymour Moskowitz, Dickens Redux: How American Child Labor Law Became a Con Game, 10 Whittier J. Child & Fam. Advoc. 89 (2010)
Doug Nix, Note: The Ninth Circuit Court of Appeals' Enforcement of the Fair Labor Standards Act in Solis V. Matheson: A Discussion of Laws of General Applicability and Their Impact on Tribal Sovereignty and Independence, 34 Am. Indian L. Rev. 359 (2009-2010)
Gregory Parks & Quinetta Roberson, "Eighteen Million Cracks": Gender's Role in the 2008 Presidential Campaign, 17 Wm. & Mary J. Women & L. 321 (2011)
Thomas Pegram, Diffusion Across Political Systems: The Global Spread of National Human Rights Institutions, 32 Hum. Rts. Q. 729 (2010)
Edward Reeves & Lainie Decker, Before ENDA: Sexual Orientation and Gender Identity Protections in the Workplace under Federal Law, 20 Tul. J.L. & Sexuality 61 (2011)
Douglas Richmond, The Contemporary Legal Environment and Employment Claims Against Law Firms 43 Tex. Tech. L. Rev. 471 (2011)
Jessica Riggin, Note: The Potential of CEDAW Ratification on U.S. Employment Discrimination Law: Lessons from Canada, 42 Colum. Hum. Rts. L. Rev. 541 (2011)
Jennifer Rosinski, Comment: Labor Relations in Florida’s Public Sector: Visiting the State’s past and Present to Find a Future Solution to the Fight over the Public Purse under Florida’s Financial Urgency Statute, 35 Nova L. Rev. 227 (2010)
Robert Russo, A Cooperative Conundrum? The NAALC and Mexican Migrant Workers in the United States, 17 Law & Bus. Rev. Am. 27 (2011)
John Sanchez, A Survey of Physician Non-Compete Agreements in Employment under Florida Law, 35 Nova L. Rev. 63 (2010)
Ani Satz, Fragmented Lives: Disability Discrimination and the Role of "Environment-Framing", 68 Wash. & Lee L. Rev. 187 (2011)
Ani Satz, Overcoming Fragmentation in Disability and Health Law, 60 Emory L.J. 277 (2010)
Jordan Segall, Nogte: Mass Incarceration, Ex-Felon Discrimination & Black Labor Market Disadvantage, 14 U. Pa. J.L. & Soc. Change 159 (2011)
Michael Selmi, Understanding Discrimination in a "Post-Racial" World, 32 Cardozo L. Rev. 833 (2011)
Patrick Shin& Mitu Gulati, Showcasing Diversity, 89 N.C. L. Rev. 1017 (2011)
Kerri Stone, Clarifying Stereotyping, 59 U. Kan. L. Rev. 591 (2011)
William Sung, Note: Taking the Fight Back to Title VII: A Case for Redefining "Because of Sex" to Include Gender Stereotypes, Sexual Orientation, and Gender Identity, 84 S. Cal. L. Rev. 487 (2011)
Symposium: The New New Deal: From De-Regulation to Re-regulation, 60 Emory L.J. 251 (2010)
Symposium: Acknowledging Race in a "Post-racial" Era, 32 Cardozo L. Rev. 755 (2011)
Symposium: Uncovered: the Policing of Sex Work, 26 Berkeley J. Gender L. & Just. 198 (2011)
Symposium: Women, Ethnicity, and Entrepreneurship, 32 W. New Eng. L. Rev. 465 (2010)
Symposium: Board Diversity and Corporate Performance: Filling in the Gaps, 89 N.C. L. Rev. 715 (2011)
Garrett Urban, Note: Causing Damage Without Authorization: The Limitations of Current Judicial Interpretations of Employee Authorization under the Computer Fraud and Abuse Act, 52 Wm. & Mary L. Rev. 1369 (2011)
Robert Uy, Blinded by Red Lights: Why Trafficking Discourse Should Shift Away from Sex and the "Perfect Victim" Paradigm, 26 Berkeley J. Gender L. & Just. 204 (2011)
Lesley Wexler, Wal-mart Matters, 46 Wake Forest L. Rev. 95 (2011)
Ryan Van Pelt, Note: Union Refusal to Arbitrate: Pyett's Unanswered Question, 2010 J. Disp. Resol. 515
Cheryl Wade, African-American Entrepreneurs: Integration, Education, and Exclusion, 32 W. New Eng. L. Rev. 483 (2010)
Emily Wilson, Note: Sprint / United Management Co. v. Mendelsohn: Tenth Circuit Employment Law Remains in "Me Too" Limbo, 63 Okla. L. Rev. 167 (2010)
Staci Zaretsky, Note: Trademark Law and Consumer Protection Law – Deception Is a Cruel Act: "Uniform" State Deceptive Trade Practices Acts and Their Deceptive Effects on the Trademark Claims of Corporate Competitors, 32 W. New Eng. L. Rev. 549 (2010)
Nancy Zisk, Failing the Test: How Ricci v. Destafano Failed to Clarify Disparate Impact and Disparate Treatment Law, 34 Hamline L. Rev. 27 (2011)
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.
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