Labor and Employment Law News - June 2012

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

Our 15^th Year
Published since 1997

June 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.

The “Agency Deliberative Process” Privilege

Most of us have heard of the the privilege against self-incrimination in criminal trials, but there are many other privileges. Two recent consolidated cases analyzed whether the Occupational Safety and Health Administration could assert a “deliberative process privilege” to withhold documents OSHA had used in making decisions and setting policies. Secretary of Labor v. Bartlett Nuclear, Inc., OSHRC Case No.10-0169 (May 23, 2012) http://www.oshrc.gov/decisions/pdf_2012/10-0130_10-0169.pdf

Privileges present many interesting issues, including whether and how a privilege may be asserted and how it can be lost. The deliberative process privilege arose in this case when the Secretary of Labor submitted a “privilege log” to the employer-respondents that said OSHA 1Bs – worksheets prepared concerning a workplace inspection – were being withheld from discovery based on the deliberative process privilege.  In other words OSHA gave the employers notice of the existence of the documents and the basis for OSHA’s position on whether the employers could have access to the documents. The employers responded that they wanted to use the documents in cross-examining witnesses during depositions. The OSHA administrative law judge ordered the documents to be turned over to the employers, but, on appeal, the Occupational Safety and Health Review Commission (OSHRC) vacated the order.

The deliberative process privilege shields from disclosure documents and other materials the government uses as part of its deliberations in making a governmental decision. As with privileges, such as the privilege against forcing spouses to testify against one another, the deliberative process privilege protects an important relationship or action by creating a zone of free communication to promote a governmental agency’s mission.  It does not apply to documents that state or explain a decision or a fact, unless the document would reveal the government body’s deliberations.

An important concern for OSHA here was that it could lose the privilege if OSHA if it allowed the employers to have access to the documents. Privileges may be waived by the holder of the privilege if the holder acts in ways that are inconsistent with keeping the information private. In this case, if the government disclosed information about its deliberative process beyond those people that needed to be included in its deliberations, the privilege would be lost.

The case also discusses the validity of the order the OSHA ALJ issued to the Secretary of Labor to show cause why the Secretary of Labor should not be held in contempt for refusing to give the respondents the documents they had requested. OSHRC scolded the ALJ and the respondent employers for inappropriate behavior. OSHRC points out that the respondents waited over a year after they were aware that the Secretary considered the documents privileged to ask the ALJ to compel discovery. The ALJ’s decision is attached to OSHRC’s decision.

Termination in Retaliation for Public Employee Speech

A recent case from West Virginia takes up the issue of public employee First Amendment rights, including freedom of speech. In this case, a vice-principal was disciplined for holding a public protest outside his school concerning his being disciplined and school policies giving favored treatment to students whose parents were “influential”.  The defendants filed a motion for summary judgment. Corbett v. Duerring, Case No.2:10-cv-01053 (S.D.W. Va., May 21, 2012) http://docs.justia.com/cases/federal/district-courts/west-virginia/wvsdce/2:2010cv01053/66181/22/0.pdf?1296333041

This case provides a helpful analysis of public employee speech rights – often a complex and controversial subject.

The court said: “It is well-settled that a public employer ‘may not retaliate against a public employee who exercises her First Amendment right to speak out on a matter of public concern.’”  Discipline in retaliation for a public employee’s exercise of free speech rights requires finding: “First, the public employee must have spoken as a citizen, not as an employee, on a matter of public concern. Second, the employee’s interest in the expression at issue must have outweighed the employer’s interest in providing effective and efficient services to the public. Third, there must have been a sufficient causal nexus between the protected speech and the retaliatory employment action.”

The court’s decision examines the evidence for each of these three elements and finds that there is evidence in the record that, after trial, could support the plaintiff’s claim.

The Americans with Disability Act - When Is Attendance a Regular Job Function?

A recent Americans with Disability Act case involving a physical education teacher provides an overview of the ADA law in the context of a complex injury. The teacher suffered from the effects of a concussion after being hit in the head while coaching volleyball and from medications taken to alleviate her symptoms. She filed an ADA discrimination case after the school fired her and also claimed that her employer had failed to make reasonable accommodations so she could continue to work despite her disability and time needed for ongoing treatment of her disability. .  Hansen v. Jerome Joint School Disrict No.261, D. Idaho, Case No.1:11-cv-00073 (May 7, 2012) http://www.gpo.gov/fdsys/pkg/USCOURTS-idd-1_11-cv-00073/pdf/USCOURTS-idd-1_11-cv-00073-0.pdf

The school rated the teacher as unsatisfactory for failing to meet students’ needs because she had missed more school than the leave policy allowed. She missed 47.3 days, of which 38.6 days were directly related to her medical condition and doctor’s appointments, because the course of the employee’s treatment and diagnosis took time and assessing her ability to return work was difficult.

To prove a violation of the ADA a plaintiff must show that she  (1) is disabled within the meaning of the statute; (2) qualified, with or without reasonable accommodation, to perform the essential functions of the job; and (3) suffered an adverse employment action – here, that would be failure to accommodate her disability and then discharging her – because of her disability. If the employer then shows that there was a non-discriminatory reason for its actions, the burden then shifts back to the plaintiff to show that the employer’s reason for termination was a pretext and that the real motive was discrimination.

The court’s decision assesses the quality of the evidence provided by the parties and gives a clear explanation of the law as applied to these facts. The decision also assesses the plaintiff’s application for Social Security disability and how it assessed possible conflicts between the proofs for Social Security Disability payments and the ADA violation. Eligibility for Social Security requires a finding that the claimant is disabled from working, while an ADA claim requires proving that the person with a disability can perform the essential functions of the job, with or without reasonable accommodations.

The court pointed out that the school had failed to provide evidence to support its decision to discharge the plaintiff. For example, it said it fired her because a teacher’s regular attendance was a job requirement, but failed to provide any information about its attendance policy in general or its policies concerning absences related to a medical condition. In addition, the court found that the employee had offered a number of possible accommodations so she could do her job, but the employer had then failed to meet its obligation to engage in an interactive process to reach reasonable accommodations. It had also not shown that the accommodations would have created an undue hardship.

A Qualified Immunity for Employer Searches of Employee Homes?

A recent case from Michigan involves municipal employees who were fired for tampering with their water meters. The employees sued city officials involved with the investigation into whether employees  – whose water meters showed unusually low use of water – had meters that showed signs of tampering.

The case discusses whether the employees who were fired had a valid basis for making a 4th Amendment claim that city officials had engaged in an unreasonable search and seizure.  In particular, the case discusses whether the officials had a qualified immunity for their actions.  Clemente v. Vaslo,  Case No. 10-2506 (6th Cir. May 15, 2012) http://www.michbar.org/opinions/us_appeals/2012/051512/51643.pdf

The court’s decision explains rights under the Fourth Amendment:

The right at issue is the Fourth Amendment right to be free of “unreasonable searches and seizures.” U.S. Const. Amend. IV. “[A] search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’” . . .  One of these specifically established exceptions is a search pursuant to consent, which must be voluntarily given. . . . “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” . . . This includes considering the characteristics of the individual giving consent, such as “age, intelligence, and education”; whether the questioner engaged in “coercive or punishing conduct”; and the presence of “more subtle forms of coercion that might flaw an individual’s judgment.” . . . . “The government bears the burden of proving, through clear and positive testimony[,] that the consent to search was given voluntarily.”

The court reviewed the facts concerning each employee. It found that some employees had not shown they had a Fourth Amendment claim for various reasons.  In some cases, the employees had waived their claim by voluntarily allowing their meters to be examined. In other cases, employees claimed they had consented to the examination only after being threatened with being fired if they did not allow the inspection. The court found that the plaintiffs were required to prove that it “‘would be clear to a reasonable officer that his conduct was unlawful.’” That finding requires proof that the right claimed must have been clearly established, that is, it must be clear that the defendant’s action violates federal law.

The plaintiffs argued that they were illegally coerced because they were given a choice between losing their jobs or incriminating themselves and that was “the antithesis of free choice”. In this case, the supervisors gained access to the water meters by  (1) asking permission to inspect them; (2) telling the employees that a city ordinance gave the city the right to inspect the employees’ meters, and (3) giving a direct order based on being the employees’ supervisor.  According to the court, “What is clearly established is only that public employers may not coerce their employees to abdicate their constitutional rights on pain of dismissal, and that is not what happened here.” 

The decision notes that the defendants’ “actual conduct highlights the blurriness of the Fourth Amendment’s contours in the context of an employer-employee relationship. . . . Though we do not decide the issue, we note that a supervisor’s direct order may be coercive in some situations, as it may be reasonable for an employee to believe that disobeying it will result in termination. The question, however, is not whether such conduct could possibly constitute a Fourth Amendment violation but whether, according to settled Supreme Court and Sixth Circuit precedent at the time, such conduct was so clearly violative of the Fourth Amendment that it is beyond debate.” The court concluded that was not the case here.  Instead, case law was not so clear that the city’s actions here rose to the level of a Fourth Amendment violation.

The decision discusses other Fourth Amendment issues, including whether a warrant was required.

Web Links

Lisa Dubay, Sharon K. Long, Emily Lawton, Will Health Reform Lead to Job Loss? Evidence from Massachusetts Says No, Urban Institute, June 7, 2012 http://www.urban.org/UploadedPDF/412582-Will-Health-Reform-Lead-to-Job-Loss-Evidence-from-Massachusetts-Says-No.pdf

Sheila R. Zedlewski, Austin Nichols, What Happens to Families' Income and Poverty after Unemployment?  May 31, 2012 http://www.urban.org/url.cfm?ID=412580

Organization for Economic Cooperation and Development, The Jobs Potential of a Shift Towards a Low-Carbon Economy, June 4, 2012 http://www.oecd.org/document/50/0,3746,en_2649_33927_50501490_1_1_1_1,00.html http://www.oecd.org/dataoecd/61/8/50503551.pdf

David I. Levine, Michael W. Toffel, Matthew S. Johnson, Randomized Government Safety Inspections Reduce Worker Injuries with No Detectable Job Loss http://www.employmentpolicy.org/sites/www.employmentpolicy.org/files/field-content-file/pdf/David%20I.%20Levine/Randomized%20Government%20Safety%20Inspections_Science.pdf

International Labor Organization, Global Employment Trends for Youth 2011, May 21, 2012 http://www.ilo.org/empelm/pubs/WCMS_165455/lang--en/index.htm

International Labor Organization, World of Work Report 2012: Better Jobs for a Better Economy May 2012 http://www.ilo.org/global/publications/books/world-of-work/lang--en/index.htm

International Labor Organization, Protecting the Poor: A microinsurance compendium. Vol. II: Offering a synthesis of new trends and practices in the growing market of microinsurance, April 10, 2012 http://www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_175786/lang--en/index.htm

John Schmitt and Marie-Eve Augier, Size and Characteristics of States’ Union Workforces, Center for Economic and Policy Research May 2012 http://www.cepr.net/documents/publications/unions-states-2012-05.pdf

Marianna Kudlyak, Thomas A. Lubik & Jonathan Tompkins, Accounting for the Non-Employment of U.S. Men, 1968-2010 http://www.richmondfed.org/publications/research/economic_quarterly/2011/q4/kudlyak.cfm

The Food Chain Workers Alliance, The Hands That Feed Us: Challenges and Opportunities for Workers Along the Food Chain (June 6, 2012) http://foodchainworkers.org/wp-content/uploads/2012/06/Hands-That-Feed-Us-Report.pdf

Government Accountability Office, Government Operations - Government Is Analyzing Alternatives for Contractor Identification Numbers, GAO-12-715R, Jun 12, 2012 http://www.gao.gov/products/GAO-12-715R

Government Accountability Office, Medicare: Trends in Beneficiaries Served and Hospital Resources Used in Implantable Medical Device Procedures GAO-12-583R, May 14, 2012 http://www.gao.gov/products/GAO-12-583R

Government Accountability Office, Patient Protection and Affordable Care Act - IRS Managing Implementation Risks, but Its Approach Could Be Refined GAO-12-690, Jun 13, 2012 http://www.gao.gov/products/GAO-12-690

Government Accountability Office, Temporary Assistance for Needy Families - Update on Program Performance, GAO-12-812T, Jun 5, 2012 http://www.gao.gov/products/GAO-12-812T

Government Accountability Office, Veterans' Health Care Budget - Transparency and Reliability of Some Estimates Supporting President's Request Could Be Improved GAO-12-689, Jun 11, 2012 http://www.gao.gov/products/GAO-12-689

Government Accountability Office, Veterans' Pension Benefits Improvements Needed to Ensure Only Qualified Veterans and Survivors Receive Benefits GAO-12-540, May 15, 2012 http://www.gao.gov/products/GAO-12-540

Government Accountability Office, Veterans' Pension Benefits - Improvements Needed to Ensure Only Qualified Veterans Receive BenefitsGAO-12-784T, Jun 6, 2012 http://www.gao.gov/products/GAO-12-784T

Government Accountability Office, Aviation Security - Actions Needed to Address Challenges and Potential Vulnerabilities Related to Securing Inbound Air Cargo GAO-12-632, May 10, 2012 http://www.gao.gov/products/GAO-12-632

Government Accountability Office, Medicare - Progress Made to Deter Fraud, but More Could Be Done GAO-12-801T, Jun 8, 2012 http://www.gao.gov/products/GAO-12-801T

Government Accountability Office, Public Service - The Chance to Remake Our World GAO-12-787CG, May 20, 2012 http://www.gao.gov/products/GAO-12-787CG

Government Accountability Office, Streamlining Government - Questions to Consider When Evaluating Proposals to Consolidate Physical Infrastructure and Management Functions GAO-12-542, May 23, 2012 http://www.gao.gov/products/GAO-12-542

Government Accountability Office, Disability Employment - Further Action Needed to Oversee Efforts to Meet Federal Government Hiring Goals GAO-12-568, May 25, 2012 http://www.gao.gov/products/GAO-12-474

Government Accountability Office, Military Disability System - Preliminary Observations on Efforts to Improve Performance GAO-12-718T, May 23, 2012 http://www.gao.gov/products/GAO-12-718T

Government Accountability Office, Military Disability System - Preliminary Observations on Efforts to Improve Performance GAO-12-718T, May 23, 2012 http://www.gao.gov/products/GAO-12-718T

Government Accountability Office, Public Service - The Chance to Remake Our World GAO-12-787CG, May 20, 2012 http://www.gao.gov/products/GAO-12-787CG

Government Accountability Office, Streamlining Government - Questions to Consider When Evaluating Proposals to Consolidate Physical Infrastructure and Management Functions GAO-12-542, May 23, 2012 http://www.gao.gov/products/GAO-12-542

Government Accountability Office, Small Employer Health Tax Credit - Factors Contributing to Low Use and Complexity GAO-12-549, May 14, 2012 http://www.gao.gov/products/GAO-12-549

Government Accountability Office, Temporary Assistance for Needy Families - State Maintenance of Effort Requirements and Trends GAO-12-713T, May 17, 2012 http://www.gao.gov/products/GAO-12-713T

Government Accountability Office, Food and Drug Administration - Employee Performance Standards for the Timely Review of Medical Product Applications GAO-12-650R, Apr 18, 2012 http://www.gao.gov/products/GAO-12-650R

Government Accountability Office, Military Disability System - Preliminary Observations on Efforts to Improve Performance GAO-12-718T, May 23, 2012 http://www.gao.gov/products/GAO-12-718T

Government Accountability Office, Patient-Centered Outcomes Research Institute - Review of the Audit of the Financial Statements for 2011 and 2010 GAO-12-663R, May 10, 2012 http://www.gao.gov/products/GAO-12-663R

Government Accountability Office, Social Security Administration - Improved Planning and Performance Measures Are Needed to Help Ensure Successful Technology Modernization GAO-12-495, Apr 26, 2012 http://www.gao.gov/products/GAO-12-495

Government Accountability Office, Social Security Administration - Technology Modernization Needs Improved Planning and Performance Measures GAO-12-723T, May 9, 2012 http://www.gao.gov/products/GAO-12-723T

Government Accountability Office, Workplace Safety and Health - Better OSHA Guidance Needed on Safety Incentive Programs GAO-12-329, Apr 9, 2012 http://www.gao.gov/products/GAO-12-329

Government Accountability Office, Unemployed Older Workers - Many Experience Challenges Regaining Employment and Face Reduced Retirement Security GAO-12-445, Apr 25, 2012 http://www.gao.gov/products/GAO-12-445

Government Accountability Office, Unemployed Older Workers - Many Face Long-Term Joblessness and Reduced Retirement Security GAO-12-724T, May 15, 2012 http://www.gao.gov/products/GAO-12-724T

Government Accountability Office, Homelessness - Fragmentation and Overlap in Programs Highlight the Need to Identify, Assess, and Reduce Inefficiencies GAO-12-491, May 10, 2012 http://www.gao.gov/products/GAO-12-491

Government Accountability Office, Department of Health and Human Services - Opportunities for Financial Savings and Program Improvements in Medicare and Medicaid Remain GAO-12-719T, May 9, 2012 http://www.gao.gov/products/GAO-12-719T

Government Accountability Office, Homeland Security - DHS and TSA Face Challenges Overseeing Acquisition of Screening Technologies GAO-12-644T, May 9, 2012 http://www.gao.gov/products/GAO-12-644T

Government Accountability Office, Economic Development - HUD Has Identified Performance Measures for Its Block Grant Programs, but Information on Impact Is Limited GAO-12-575R, May 15, 2012 http://www.gao.gov/products/GAO-12-575R

Government Accountability Office, Department of Health and Human Services Office of Inspector General, Retail Pharmacies with Questionable Part D Billing, May 12, 2012 http://oig.hhs.gov/oei/reports/oei-02-09-00600.pdf

Rutgers Center for Women and Work, Giving Voice to New Jersey's Caregivers: The Union Experiences of Home-Based Child Care Providers, May 2012 http://smlr.rutgers.edu/sites/smlr/files/Giving%20Voice%20Final%20-%20for%20release%20May%2023%202012.pdf

Rutgers Center for Women and Work,  A Higher Mininum Wage Would Benefit Working Women, Their Families and All New Jerseyans Joint Economic Committee, Mother's Day Report: Paycheck Fairness Helps Families, Not Just Women May 9, 2012 http://www.jec.senate.gov/public/?a=Files.Serve&File_id=f11e726b-135b-4e1d-8334-2903491d9691

Joint Economic Committee, JEC Hearing: How the Taxation of Labor and Transfer Payments Affect Growth and Employment May 16 2012 http://www.jec.senate.gov/public/index.cfm?p=Hearings&ContentRecord_id=e27baaf2-15f3-496a-bdb0-30040e67b08e

Joint Economic Committee, Understanding the Economy: State-by-State Snapshots (May 21, 2012) http://www.jec.senate.gov/public/index.cfm?p=Reports1&ContentRecord_id=5974956b-b618-4137-816a-043fb3a706cd

Office of Personnel Management, Pathways for Students and Recent Graduates http://www.opm.gov/hiringreform/pathways/

EBRI Notes, Retirement Income Adequacy for Boomers and Gen Xers: Evidence from the 2012 EBRI Retirement Security Projection Model, Trends in Employment-Based Coverage Among Workers, and Access to Coverage Among Uninsured Workers, 1995-2011, May 2012 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=5062

EBRI Notes, Trends in Employment-Based Coverage Among Workers, and Access to Coverage Among Uninsured Workers, 1995-2011, May 2012 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=5061

EBRI, 401(k) Valuations: 401(k) Balances and Changes Due to Market Volatility May 14, 2012 http://www.ebri.org/?fa=401kbalances

EBRI Databook on Employee Benefits Update May 2012 http://www.ebri.org/publications/books/?fa=databook

EBRI Notes, Characteristics of the Population With Consumer-Driven and High-Deductible Health Plans, 2005–2011, April 2012 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=5046

Recent Labor and Employment Law Articles

Jackie Barber, Comment: Glenn v. Brumby: Extending Protection from Sex-Based Discrimination to Transsexuals in the Eleventh Circuit, 21 Tul. J.L. & Sexuality 169 (2012)

Natasha Bhushan, Note: Work-Family Policy in the United States, 21 Cornell J.L. & Pub. Pol'y 677 (2012)

Tamar Birckhead, Delinquent by Reason of Poverty, 38 Wash. U. J.L. & Pol'y 53 (2012)

Travis Bayer, Note:  Defined (Yet Uncertain) Benefit Pension Plans in America, 87 Chi.-Kent. L. Rev. 201 (2012)

Andrew Brenton, Comment: Overcoming the Equal Pay Act and Title VII : Why Federal Sex- Based Employment Discrimination Laws Should Be Replaced with a System for Accrediting Employers for Their Antidiscriminatory Employment Practices, 26 Wis. L.J.  Gender & Soc'y 349 (2011)

Paul Caritj, Note: Tortious Interference with the Expectancy of Entitlement Benefits, 45 U. Mich. J.L. Reform 455 (2012)

Renee Chartres & Bryan Mercurio, A Call for an Agreement on Trade-Related Aspects of Labor: Why and How the Wto Should Play a Role in Upholding Core Labor Standards, 37 N.C. J. Int'l L. & Com. Reg. 665 (2012)

Catherine Crane, Note:  Social Networking v. the Employment-at-Will Doctrine: A Potential Defense for Employees Fired for Facebooking, Terminated for Twittering, Booted for Blogging, and Sacked for Social Networking, 89 Wash. U. L. Rev. 639 (2012)

Jens Dammann, Place Aux Dames: The Ideological Divide Between U.S. and European Gender Discrimination Laws, 45 Cornell Int'l L.J. 25 (2012)

John Dorocak & James Estes, State and Local Government Funding of Health and Retirement Benefits for Employees: Current Problems and Possible Solutions with California Health Benefits as an Example, 62 Syracuse L. Rev. 303 (2012)

Donald Dowling, How to Launch and Operate a Legally-Compliant International Workplace Report Channel, 45 Int'l Law. 903 (2011)

Zev Eigen & David Sherwyn, A Moral / Contractual Approach to Labor Law Reform, 63 Hastings L.J.  695 (2012)

Joshua Ernst, Comment: The Dodd-Frank Whistleblower Provision: Throwing Fuel on the Fire for Foreign Corrupt Practices Act Compliance, 43 Ariz. St. L.J.  1313 (2011)

Clifford Fishman, Electronic Privacy in the Government Workplace and City of Ontario, California v. Quon: The Supreme Court Brought Forth a Mouse, 81 Miss. L.J. 1359 (2012)

Timothy Fitzmaurice, Note: The Scope of Protected Activity under Section 806 of SOX, 80 Fordham L. Rev. 2041 (2012)

Brian Galle & Kirk Stark, Beyond Bailouts: Federal Tools for Preventing State Budget Crises, 87 Ind. L.J.  599 (2012)

Garcia, Ruben J. Ten years after Hoffman Plastic Compounds, Inc. v. NLRB: the power of a labor law symbol. 21 Cornell J.L. & Pub. Pol'y 659 (2012)

Jeremy Gelms, Comment:  High-Tech Harassment: Employer Liability under Title VII for Employee Social Media Misconduct, 87 Wash. L. Rev. 249 (2012)

Matthew Green, Family, Cubicle Mate and Everyone in Between: A Novel Approach to Protecting Employees from Third-Party Retaliation under Title VII and Kindred Statutes, 30 Quinnipiac L. Rev. 249 (2012)

Kati Griffith, Undocumented Workers: Crossing the Borders of Immigration and Workplace Law. 21 Cornell J.L. & Pub. Pol'y 611 (2012)

Jamie Gullen, Note: Colorblind Education Reform: How Race-Neutral Policies Perpetuate Segregation and Why Voluntary Integration Should Be Put Back on the Reform Agenda, 15 U. Pa. J.L. & Soc. Change 251 (2012)

Benjamin Hutchinson, Note: It Has to End Somewhere: Feiereisen v. Newpage Corp.  and the Scope of the Employment Contract, 64 Me. L. Rev. 325 (2011)

Wyatt Jansen, Note:  Impermissible Windfalls? Unemployment Insurance, Back Pay, and the Two Classes of Title VII Plaintiffs, 18 Conn. Ins. L.J.  307 (2011)

Duncan Kennedy, African Poverty, 87 Wash. L. Rev. 205 (2012)

Rona Kaufman Kitchen, Eradicating the Mothering Effect: Women as Workers and Mothers, Successfully and Simultaneously, 26 Wis. J.L. Gender & Soc'y 167 (2011)

Danielle. Krause, Note: The Domestic Violence Leave Act: The Need for Victim Workplace Leave on a Federal Level and in North Dakota, 87 N.D. L. Rev. 167 (2011)

Elizabeth Leyda, Note: The War(iors) at Home: Examining USERRA's Veterans' Reemployment Protections When Hostility Follows Soldiers to the Workplace, 28 Ga. St. U. L. Rev. 851 (2012)

Thomas McIntyre, Note: Discriminatory Opportunism: Why Undertaking Self-employment to Mitigate Damages Creates Unique Challenges, 45 Suffolk U.L. Rev. 549 (2012)

Kristin Malone, Note:  Using Financial Incentives to Achieve the Normative Goals of the FMLA, 90 Tex. L. Rev. 1307 (2012)

Charles Mathes, Note:  The Department of Labor's Changing Policies Toward the H-2b Temporary Worker Program: Primarily for the Benefit of Nobody, 80 Fordham L. Rev. 1801 (2012)

Scott Moss & Nantiya Ruan, The Second-class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules, 61 Am. U. L. Rev. 523 (2012)

Kelly Noonan, Note:  An Industry Missing Minorities: the Disparate Impact of the Securities and Exchange Commission's Fingerprinting Rule, 87 Chi.-Kent. L. Rev. 299 (2012)

Katie Patrick, Note: Airline Employees Are Not Reporting Violations Because They Lack Adequate Whistleblower Protection: Are You Ready for Takeoff? 46 Val. U. L. Rev. 211 (2011)

Benjamin Pepper, Comment:  Staub v. Proctor Hospital: A Tenuous Step in the Right Direction, 16 Lewis & Clark L. Rev. 363 (2012)

Christopher Peterson, Comment: Thinking Outside the Disability Management Box: the Case for Modified Duty Off-site in Nebraska, 90 Neb. L. Rev. 834 (2012)

Jillian Redding, ERISA: Remedies, Preemption and the Need for More State Regulatory Oversight, 18 Conn. Ins. L.J.  169 (2011)

Leticia Saucedo & Maria Cristina Morales, Voices Without Law: the Border Crossing Stories and Workplace Attitudes of Immigrants, 21 Cornell J.L. & Pub. Pol'y 641 (2012)

Christopher Sherwood, Comment: Threading the Needle: State Immigration-related Employment Laws Surviving a Federal Preemption Analysis, 12 Wyoming L. Rev. 253 (2012)

Dodson Strawbridge, Thy Fiance Doth Protest Too Much: Third-Party Retaliation under Title VII, 63 Mercer L. Rev. 767 (2012)

Swan, Collin D. Note:  Dead Letter Prohibitions and Policy Failures: Applying Government Ethics Standards to Personal Services Contractors. 80 Geo. Wash. L. Rev. 668 (2012)

Symposium: Crossing the Borders of Immigration and Workplace Law, 21 Cornell J.L. & Pub. Pol'y 611 (2012)

Symposium: Corporate Governance. 26 Notre Dame J.L. Ethics & Pub. Pol'y 1 (2012)

Justin Walters, Note: Drawing the Line: The Need to Rethink Remedies under the Age Discrimination in Employment Act, 2012 U. Ill. L. Rev. 255

Deborah Widiss, Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, 90 Tex. L. Rev. 859 (2012)

Yiyang Wu, Comment: Scaling the Wall and Running the Mile: the Role of Physical-Selection Procedures in the Disparate Impact Narrative, 160 U. Pa. L. Rev. 1195 (2012)

Noah Zatz, Poverty Unmodified?: Critical Reflections on the Deserving/undeserving Distinction. 59 UCLA L. Rev. 550 (2012)

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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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