Labor and Employment Law News - March 2012

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

March 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.

Does the Fair Labor Standards Act’s White Collar Exemption Allow a Financially Troubled Employer to Pay an Exempt Employee Nothing

                The Fair Labor Standards Act’s  “white collar exemptions” release employers from paying bona fide executive, administrative, and professional workers overtime and minimum wage. A recent case analyzes whether a failing employer may stop paying any wages to an exempt employee. The district court dismissed the case on the ground that the plaintiff employee had failed to state a claim under the FLSA. The court of appeals reversed. Orton v. Johnny's Lunch Franchise, LLC, Case No.10-2044 (6th Cir. Feb. 21, 2012) http://www.ca6.uscourts.gov/opinions.pdf/12a0047p-06.pdf

http://www.michbar.org/opinions/us_appeals/2012/022112/50944.pdf

                First, the court of appeals observed that the district court had failed to consider who had the burden of establishing the plaintiff’s status as exempt. The court of appeals observed that when the employer claimed that the plaintiff was an exempt employee, the employer raised an affirmative defense. It is the employer who bears the burden of proving that affirmative defense by a preponderance of the evidence, and the employer can only satisfy that burden by providing “clear and affirmative evidence that the employee meets every requirement of an exemption.”

                Second, the court of appeals observed that the FLSA’s salary-basis pay requirement for the white collar exemption requires that the employee receive set compensation in each pay period and, to be exempt, the employee “must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.”  Failing to pay the employee’s salary violates that requirement. The court said that employers with cash flow problems can renegotiate the level of salary, as long as the employee’s salary is at least $455 per week.

                For those interested in learning more about this issue, the Department of Labor provides helpful information sheets. FairPay Fact Sheets by Exemption http://www.dol.gov/whd/regs/compliance/fairpay/fact_exemption.htm

http://www.dol.gov/whd/regs/compliance/fairpay/faq_PF.htm

Union Representation in the Construction Industry

                The unique structure of union representation in the construction industry provides a potential model for other sectors where short term jobs are common. The key components that have made construction work attractive are based on multi-employer collective bargaining agreements that support a system of uniform training (which allows workers to work efficiently upon starting a job), paid apprenticeships, hiring halls that dispatch workers as an employer needs them, and a pay and benefits structure that turn a series of short term jobs into a career that allows a worker to support a family.

                The NLRA potentially made many of these common practices illegal. Sec. 9(a) says that when a majority of employees choose a representative, that representative has the exclusive right to represent all employees in that bargaining unit. An employer that recognizes a union that is not supported by a majority of employees in the bargaining unit commits a violation of Sec. 8(a)(2). Taft-Hartley added Sec. 8(f) to carve out an exemption for construction jobs from Secs. 9(a) and 8(a)(2)’s majority representation requirements. Other industries, such as banquet servers have similar challenges and operations but are not covered by Sec. 8(f).

                This is not to say that construction unions cannot have Sec. 9(a) status. A recent case from the D.C. Circuit Court of Appeals found that a contractor’s actions had established a 9(a) relationship with a Plumbers and Pipefitters local union. The case discusses how that relationship was established. Allied Mechanical Services, Inc. v. NLRB, Case No.10-1328 (D.C. Cir. Feb. 17, 2012). http://www.cadc.uscourts.gov/internet/opinions.nsf/88AAFC3D5C2285ED852579A70053DE01/$file/10-1328-1359071.pdf                               

Supervisor Liability Under the Family and Medical Leave Act (FMLA)

                A recent court of appeals case held that a supervisor can be individually liable for violating an employee’s FMLA rights based on the FMLA’s statement of who can be liable and its definition of who is an employer. There is a circuit split on whether individual liability is available under the FMLA. Haybarger v. Lawrence County Adult Probation & Parole, Case No.10-3916 (3d Cir. Jan. 31, 2012) http://www.ca3.uscourts.gov/opinarch/103916p.pdf

                The Third Circuit based its decision that supervisors can be liable because the FMLA says that the term “employer” “includes– (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”  In addition, the “Department of Labor’s FMLA regulations confirm that the FMLA permits individual liability. The regulations state that e[e]mployers . . . include any person acting, directly or indirectly, in the interest of a covered employer to any of the employees of the employer . . .’  29 C.F.R. § 825.104(a).” The court also pointed out that the FMLA’s regulations are similar to the Fair Labor Standards Act regulations. The FLSA regulations define “‘employer’ similarly to the FMLA”, and the FLSA “holds ‘corporate officers, managers and supervisors acting in the interest of an employer . . . individually liable.’”

Are Names of Clients Trade Secrets?

                Companies information can be protected in various ways, such as having employees sign noncompete agreements, which create a disincentive for an employee to go to work at a competitor. Company trade secrets can also be protected, if the information qualifies as a trade secret, and if steps are taken to keep the information secret. A recent Ohio case finds that a company’s client names were not trade secrets.  Columbus Bookkeeping & Business Services v. Ohio State Bookkeeping, LLC, Case No.11AP-227 (Oh. Ct. App. Dec. 30, 2011 http://www.sconet.state.oh.us/rod/docs/pdf/10/2011/2011-ohio-6877.pdf

                The existence of a trade secret depends on its being a secret, that is it must be information that is not generally known. Client lists can be trade secrets if they meet the legal criteria in thier state. The court in this case found that the company had failed to take the steps necessary to treat its client list as a trade secret and that its employees had not misappropriated that information when they left to work for another employer.  The court identified these criteria as necessary to show that a trade secret exists:

                (1) the extent to which the information is known outside the business;

                (2) the extent to which it is known to those inside the business, i.e., by the employees;

                (3) the precautions taken by the holder of the trade secret to guard the secrecy of the information;

                (4) the savings effected and the value to the holder in having the information as against competitors;

                (5) the amount of effort or money expended in obtaining and developing the information;

                (6) the amount of time and expense it would take for others to acquire and duplicate the information.

Family and Medical Leave Act (FMLA) Remedies for Employer Bad Faith

                In this case, the employer found itself liable for double damages, because it had not acted in good faith when it discharged an employee who had sought FMLA leave. Thom v. American Standard, Inc., Case  No.09-3507 (6th Cir. Jan. 20, 2012) http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf

                The employee, who had worked for American Standard for 36 years, requested FMLA leave until June 27 for shoulder surgery. (The injury was not caused by work, so he did not qualify for workers compensation.) 

                At first he seemed to be recovering rapidly and was cleared by his doctor for light duty work beginning May 31. However, when he returned to work that day, Human Resources sent him home because “the company did not permit employees with non-work-related injuries to perform light duty work temporarily after FMLA leave.”

                On June 14, HR called the employee to ask why he had not come to work on June 13. The employee said he continued to be in pain and would return to work on the last day of his approved leave. He immediately tried to see his doctor for a note confirming his need for leave beyond June 13 but could not get an appointment for several days. During that time, he was terminated for exceeding his allowed absences. because American Standard had counted every day he was absent from June 13 as an unexcused absence. Not only did the company discharge him, it caused him to lose his pension benefits, and he had great difficulty finding a new job.

                The appellate decision is interesting because it discusses some issues that have received less attention than other FMLA issues. These include the application of various ways of calculating an employee’s leave year and the employer’s obligation to give employees notice of the method. for calculating leave. The court clearly did not think highly of the arguments made by the employer. The court observed: “Pretextual reasons for discharge manufactured after the fact in order to justify an earlier wrong are not consistent with good faith.”

Privacy at Work for Employee Personal Email?

                In our now extensively networked world, what rights to privacy exist at work? The best answer for employees may be to assume they have no privacy rights and must keep their work and private lives separate. The longer answer is that employee rights to privacy at work are governed by many laws (too many to discuss here), and those rights vary depending on whether an employer is in the private or public sector. A recent case from a California district court provides an example of laws that can affect employee rights to privacy at work. Doe v. City & County of San Francisco, Case No.C10-04700TEH (N.D. Cal. Dec. 13, 2011) http://docs.justia.com/cases/federal/district-courts/california/candce/3:2010cv04700/233056/99/0.pdf?1323855629

http://law.justia.com/cases/federal/district-courts/california/candce/3:2010cv04700/233056/99

                The plaintiffs sued their employer, the City and County of San Francisco Department of Emergency Communications, after emails from plaintiff Doe’s personal email account were accessed by her employer. The DEC had provided computers that employees could use on breaks for non-work purposes, as long as they were not used for improper purposes. Some emails by plaintiff Raskin with Doe were among the emails accessed. An investigation showed that Doe had not violated DEC policies. 

                The plaintiffs sued, alleging violations of the Federal Stored Communications Act, California's whistleblower statutes, invasion of privacy, intentional infliction of emotional distress, and California Fair Employment and Housing Act. The decision gives an overview of these law and how the law and facts apply to each allegation.

                The decision in this case is based on the plaintiffs’ motion for summary judgment on all their claims. Summary judgment is essentially a “paper trial” based on documents submitted by the parties, including the pleadings and discovery. A summary judgment can only be made when there is no genuine dispute about any “material” fact and when the law shows that the moving party is entitled to judgment. A denial of summary judgment does not mean that the plaintiffs lost their case. It  means that the case on those counts continues.

                In this case, the court found that the plaintiffs were entitled to summary judgment only on their state invasion of privacy claim.  California’s constitution provides a high degree of protection for privacy rights. Art. 1, Sec.. 1 says:  “All people are by nature free and independent and have inalienable rights including the right of privacy.”

                The judge denied the other claims because facts were in dispute, and disputed facts can only be decided after a trial. As a result, the remaining claims will continue to trial.

Piercing the Corporate Veil - When Employers Become Personally Liable

                One advantage of incorporating a business is that it limits the liability of the corporation’s owners. That is, the owner of the corporation is normally not liable to remedy legal obligations of the corporation. However, corporate owners can lose that protection and become personally liable when owners use the corporate form to create injustice and evade the owner’s legal obligations. A recent example that discusses the doctrine is Domsey Trading Corp., 357 NLRB No.180 (Dec. 30, 2011) http://mynlrb.nlrb.gov/link/document.aspx/09031d4580798405

Web Links

Mark Fulton, Jake Baker, & Margot Brandenburg, United States Building Energy Efficiency Retrofits: Market Sizing and Financing Models (Deutsche Bank Climate Change Advisors & The Rockefeller Foundation) March 2012 http://www.rockefellerfoundation.org/news/publications/united-states-building-energy-efficiency

Mine Safety and Health Administration, Performance Coal Company - Upper Big Branch Mine-South -South Massey Energy Company, Mine ID: 46-08436 (a single source page of information and resources regarding the Upper Big Branch Mine-South explosion which occurred on April 5, 2010) http://www.msha.gov/PerformanceCoal/PerformanceCoal.asp

MSHA internal review team releases report on agency's actions prior to UBB blast, 3-6-12 http://www.msha.gov/MEDIA/PRESS/2012/NR120306.asp

U.S. Department of Labor - Mine Safety and Health Administration, Internal Review of MSHA’s Actions at the Upper Big Branch Mine-South Performance Coal Company Montcoal, Raleigh County, West Virginia, March 6, 2012 http://www.msha.gov/PerformanceCoal/UBBInternalReview/UBBInternalReviewReportNoappx.pdf

Department of Labor, Summer Jobs+   http://www.dol.gov/summerjobs/

Barbara Butrica & Karen E. Smith, The Impact of Changes in Couples' Earnings on Married Women's Social Security Benefits, Urban Institute, February 2, 2012 http://www.urban.org/url.cfm?ID=1001591

Barbara Butrica, Karen E. Smith & Howard Iams, This Is Not Your Parents' Retirement: Comparing Retirement Income Across Generations, Urban Institute, February 2, 2012 http://www.urban.org/url.cfm?ID=1001594

Kathryn L.S. Pettit & Jennifer Comey, The Foreclosure Crisis and Children: A Three-City Study, Urban Institute, March 1, 2012 http://www.urban.org/publications/412517.html

EEOC, Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

EEOC, Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Veterans http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm

NLRB, Explanation of Election Process Changes. The changes are to take effect on April 30, 2012. https://www.nlrb.gov/node/3608

NLRB, Graphs & Data https://www.nlrb.gov/graphs-data

Government Accountability Office, Postsecondary Education - Financial Trends in Public and Private Nonprofit Institutions GAO-12-179, Jan 26, 2012 http://www.gao.gov/products/GAO-12-179

Government Accountability Office, VA Health Care - Methodology for Estimating and Process for Tracking Savings Need Improvement GAO-12-305, Feb 27, 2012 http://www.gao.gov/products/GAO-12-305

Government Accountability Office, More Efficient and Effective Government - Opportunities to Reduce Duplication, Overlap and Fragmentation, Achieve Savings, and Enhance Revenue GAO-12-449T, Feb 28, 2012 http://www.gao.gov/products/GAO-12-449T

Government Accountability Office, Nursing Home Quality - CMS Should Improve Efforts to Monitor Implementation of the Quality Indicator Survey  GAO-12-214, Feb 1, 2012 http://www.gao.gov/products/GAO-12-214

Government Accountability Office, State and Local Government Pension Plans - Economic Downturn Spurs Efforts to Address Costs and Sustainability GAO-12-322, Mar 2, 2012 http://www.gao.gov/products/GAO-12-322

Government Accountability Office, Cybersecurity - Challenges in Securing the Modernized Electricity Grid GAO-12-507T, Feb 28, 2012 http://www.gao.gov/products/GAO-12-507T

Government Accountability Office, Follow-up on 2011 Report - Status of Actions Taken to Reduce Duplication, Overlap, and Fragmentation, Save Tax Dollars, and Enhance Revenue GAO-12-453SP, Feb 28, 2012 http://www.gao.gov/products/GAO-12-453SP

Government Accountability Office, Department of Homeland Security - Continued Progress Made Improving and Integrating Management Areas, but More Work Remains GAO-12-365T, Mar 1, 2012 http://www.gao.gov/products/GAO-12-365T

Government Accountability Office, VA Health Care - Methodology for Estimating and Process for Tracking Savings Need Improvement, GAO-12-305, Feb 27, 2012 http://www.gao.gov/products/GAO-12-305

Government Accountability Office, Postsecondary Education - Financial Trends in Public and Private Nonprofit Institutions, GAO-12-179, Jan 26, 2012 http://www.gao.gov/products/GAO-12-179

Government Accountability Office, Cybersecurity - Challenges in Securing the Modernized Electricity Grid, GAO-12-507T, Feb 28, 2012 http://www.gao.gov/products/GAO-12-507T

Government Accountability Office, More Efficient and Effective Government - Opportunities to Reduce Duplication, Overlap and Fragmentation, Achieve Savings, and Enhance Revenue, GAO-12-449T, Feb 28, 2012 http://www.gao.gov/products/GAO-12-449T

Rob Valletta and Katherine Kuang, Why Is Unemployment Duration So Long? San Francisco Federal Reserve Bank  2012-03, January 30, 2012 http://www.frbsf.org/publications/economics/letter/2012/el2012-03.html?utm_source=home

NLRB Guideline Memorandum Concerning Collyer Deferral GC 12-01, January 20, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d45807c05ed

Weekly Summary of NLRB Decisions http://nlrb.gov/cases-decisions/weekly-summaries-decisions

International Labor Organization, Human Rights, Development and Decolonization. The International Labour Organization, 1940–70, 31 January 2012  http://www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_169521/lang--en/index.htm

International Labor Organization, Global Employment Trends 2012, January 2012 http://www.ilo.org/global/publications/books/global-employment-trends/WCMS_171571/lang--en/index.htm

International Labor Organization, ILO Programme Implementation 2010-11, February 15, 2012  http://www.ilo.org/gb/GBSessions/GB313/pfa/WCMS_173292/lang--en/index.htm  (The document is submitted for debate and guidance)

Joyce Northwood,  Assaults and Violent Acts in the Private Retail Trade Sector, 2003—2008 U.S. Bureau of Labor Statistics, December 7, 2011 http://www.bls.gov/opub/cwc/print/sh20111202ar01p1.htm

Brian Mauersberger, Tracking Employment-Based Health Benefits in Changing Times, Bureau of Labor Statistics, January 27, 2012 http://www.bls.gov/opub/cwc/cm20120125ar01p1.htm

Bureau of Labor Statistics, The Recession of 2007–2009, February 2012 http://www.bls.gov/spotlight/2012/recession/

Bureau of Labor Statistics, Automobiles, October 2011 http://www.bls.gov/spotlight/2011/auto/

Brian Mauersberger, Tracking Employment-Based Health Benefits in Changing Times, Bureau of Labor Statistics, January 27, 2012 http://bls.gov/opub/cwc/cm20120125ar01p1.htm

Department of Labor, Summer Jobs+ http://www.dol.gov/summerjobs/

CDC / NIOSH, Home Healthcare Workers: How to Prevent Violence on the Job DHHS (NIOSH) Publication No. 2012-118, February 13, 2012 http://www.cdc.gov/niosh/docs/2012-118/

CDC / NIOSH, Lessons Learned from the Deepwater Horizon Response DHHS (NIOSH) Publication No. 2012-117, February 2, 2012 http://www.cdc.gov/niosh/docs/2012-117/

Towers Watson, Global Pension Assets Study 2012 http://www.towerswatson.com/assets/pdf/6267/Global-Pensions-Asset-Study-2012.pdf

EBRI Notes – February 2012 - Labor-force Participation Rates of the Population Age 55 and Older, 2011: After the Economic Downturn' and 'Employer and Worker Contributions to Health Savings Accounts and Health Reimbursement Arrangements, 2006-2011 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4996

EBRI Issue Brief – January 2012 Health Savings Accounts and Health Reimbursement Arrangements: Assets, Account Balances, and Rollovers, 2006–2011 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4977

EBRI Issue Brief – February 2012 - Expenditure Patterns of Older Americans, 2001-2009 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4992

EBRI Notes – January 2012 - The Impact of PPACA on Employment-Based Health Coverage of Adult Children to Age 26,' and 'Spending Adjustments Made By Older Americans to Save Money http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id...

Jack VanDerhei, Research Director, Employee Benefit Research Institute, Will Boomer and Gen X Women be Able to Afford Retirement at Age 65? Evidence from the 2012 EBRI Retirement Security Projection Model® February 7, 2012 http://www.urban.org/events/upload/Vanderhei-presentation-for-urban-february-7-2012.pdf

Small Business Owners' Opinions on Regulations and Job Creation (February 1, 2012) http://mainstreetalliance.org/wp-content/uploads/2012/02/report-small-business-regulations-economy-Feb-1-2012.pdf.

Department of Labor Office of Inspector General, Recovery Act: ETA Is Missing Opportunities to Detect and Collect Billions of Dollars in Overpayments Pertaining to Federally-funded Emergency Benefits, Report Number:18-12-001-03-315 (January 31, 2012) http://www.oig.dol.gov/public/reports/oa/2012/18-12-001-03-315.pdf

Top Management Challenges identified by the Department of Labor Office of the Inspector General (OIG) for the Department of Labor (DOL) (issued November 15, 2011) http://www.oig.dol.gov/public/topchallenges/2011.pdf

Department of Labor Office of Inspector General, Audit Report links http://www.oig.dol.gov/cgi-bin/oa_rpts.cgi?s=&y=fy92012&a=allhttp://www.oig.dol.gov/cgi-bin/oa_rpts.cgi?s=&y=fy92012&a=all

NLRB, Report of the Acting General Counsel Concerning Social Media Cases OM 12-31  January 24, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567

OSHA Whistleblower Protection Program moved to Office of the Assistant Secretary March 1, 2012 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=21909

OSHA and the Society for Chemical Hazard Communication renew Alliance to promote best practices to reduce worker exposures to chemical hazards  March 1, 2012 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=21906

Stephan Lindner & Austin Nichols, The Impact of Temporary Assistance Programs on Disability Rolls and Re-Employment (The Urban Institute) January 2012 http://www.urban.org/UploadedPDF/412503-The-Impact-of-Temporary-Assistance-Programs-on-Disability-Rolls-and-Re-Employment.pdf

Recent Labor and Employment Law Articles

Daniel Anderson, Note: Restricting Social Graces: The Implications of Social Media for Restrictive Covenants in Employment Contracts, 72 Ohio St. L.J. 881 (2011)

Richard Bales, A Data-driven Snapshot of Labor and Employment Law Professors, 56 St. Louis U. L.J. 231 (2011)

Nathan Bader, Note: Hats off to Them: Muslim Women Stand Against Workplace Religious Discrimination in GEO Group, 56 St. Louis U. L.J. 261 (2011)

Emily Baver, Comment: Setting Labor Policy Prospectively: Rulemaking, Adjudicating, and What the NLRB Can Learn from the NMB's Representation Election Procedure Rule, 63 Admin. L. Rev. 853 (2011)

Matthew Chandler, Comment: Moral Mandate or Personal Preference? Possible Avenues for Accommodation of Civil Servants Morally Opposed to Facilitating Same-sex Marriage. 2011 BYU  L. Rev. 1625

Eirik Cheverud, Note: Increased Tax Liability Awards after Eshelman: A Call for Expanded Acceptance Beyond the Realm of Anti-Discrimination Statutes, 56 N.Y.l. Sch. L. Rev. 711 (2011/12)

Kathleen Clark, Ethics, Employees and Contractors: Financial Conflicts of Interest in and out of Government, 62 Ala. L. Rev. 961 (2011)

John Coates, et alia, Hiring Teams, Firms, and Lawyers: Evidence of the Evolving Relationships in the Corporate Legal Market, 36 Law & Soc. Inquiry 999 (2011)

Michael Connett, Comment: Employer Discrimination Against Individuals with a Criminal Record: The Unfulfilled Role of State Fair Employment Agencies. 83 Temp. L. Rev. 1007 (2011)

William Corbett, "The More Things Change, . . .": Reflections on the Stasis of Labor Law in the United States, 56 Vill. L. Rev. 227 (2011)

Angel Darmer, Comment: Reconciling IRCA with the Anti-retaliation Provisions of the NLRA: How Far Should Hoffman Plastic Compounds, Inc. v. NLRB Be Extended? 34 Am. J. Trial Advoc. 687 (2011)

April Dawson, A Next Step in Health Care Reform: Ensuring the Protection of Employee Rights under the Family and Medical Leave Act, 56 St. Louis U. L.J. 1 (2011)

Mark Deethardt, Comment: Life after Gross: Creating a New Center for Disparate Treatment Proof Structures, 72 La. L. Rev. 187 (2011)

Lothar Determann & Robert Sprague, Intrusive Monitoring: Employee Privacy Expectations Are Reasonable in Europe, Destroyed in the United States, 26 Berkeley Tech. L.J. 979 (2011)

Ronit Dinovitzer, The Financial Rewards of Elite Status in the Legal Profession, 36 Law & Soc. Inquiry 971 (2011)

Michelle Eviston, Note: Front Pay under the FMLA, 38 N. Ky. L. Rev. 259 (2011)

Michelle Eviston & Richard Bales, Capping the Costs of Consumer and Employment Arbitration, 42 U. Tol. L. Rev. 903 (2011)

Alek Felstiner, Grappling with Online Work: Lessons from Cyberlaw, 56 St. Louis U. L.J. 209 (2011)

Susan Fiske & Eugene Borgida, Standards for Using Social Psychological Evidence in Employment Discrimination Cases, 83 Temp. L. Rev. 867 (2011)

Louise Floyd, When Old Meets New: Some Perspectives on Recent Chinese Legal Developments and Their Relevance to the United States (The Importance of Labor Law), 64 SMU L. Rev. 1209 (2011)

Drew Frederick,  Comment: Exempt Executives? Dollar General Store Managers' Embattled Quest for Overtime Pay under the Fair Labor Standards Act, 160 U. Pa. L. Rev. 277 (2011)

David Gantz, Labor Rights and Environmental Protection under NAFTA and Other U.S. Free Trade Agreements, 42 U. Miami Inter-Am. L. Rev. 297 (2011)

Terence Halliday & Robert Nelson, Lawyers, Structure, and Power: A Tribute to John Heinz, 36 Law & Soc. Inquiry 885 (2011)

Hannah Heck, Comment: Solving Insolvent Public Pensions: The Limitations of the Current Bankruptcy Option, 28 Emory Bankr. Dev. J. 89 (2011)

Charles Hill, Comment: Legislating by Proxy: Did President Obama Amend the Texas Labor Code When He Signed the Lilly Ledbetter Fair Pay Act? 18 Tex. Wesleyan L. Rev. 337 (2011)

Joshua Kagan, Note: Making Free Trade Fair: How the WTO Could Incorporate Labor Rights and Why it Should, 43 Geo. J. Int'l L. 195 (2011)

David Kairys, Unconscious Racism, 83 Temp. L. Rev. 857 (2011)

Andrew Kenny, Comment: The Meaning of "Because" in Employment Discrimination Law: Causation in Title VII Retaliation Cases, 78 U. Chi. L. Rev. 1031 (2011)

Joseph Layne, Fighting a Losing Battle: IRCA's Negative Impact on Law -abiding Employers, 44 Loy. L.A. L. Rev. 1431 (2011)

Anthony Laramore, Note: Missouri's Unemployment Crisis: The Labor and Industrial Relations Commission Ignores the Missouri Supreme Court, 55 St. Louis U. L.J. 1469 (2011)

Kenneth Lopatka, A Critical Perspective on the Interplay Between Our Federal Labor and Arbitration Laws, 63 S.C. L. Rev. 43 (2011)

Christopher Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1 (2011)

Rachel Micah-Jones, From Pedagogy to Partnership: Leveraging the Law Clinic to Institutionalize Cutting Edge Strategies in Transnational Labor Advocacy, 26 Md. J. Int'l L. 113 (2011)

Michelle Modery, Comment:  Injury Time-out: Justifying Workers' Compensation Awards to Retired Athletes with Concussion-Caused Dementia, 84 Temp. L. Rev. 247 (2011)

Anthony Paik, et alia, Political Lawyers: The Structure of a National Network, 36 Law & Soc. Inquiry 892 (2011)

Stephen Powell, Managing the Rule of Law in the Americas: An Empirical Portrait of the Effects of 15 Years of WOT, Mercosul, and NAFTA Dispute Resolution on Civil Society in Latin America, 42 U. Miami Inter-Am. L. Rev. 197 (2011)

Michelle Rich, Comment: The Delinquent State: Illinois and Compliance with Workers' Compensation Judgments, 56 St. Louis U. L.J. 301 (2011)

Michael Ross, Comment: Blow the Whistle at Your Own Risk: ERISA's Retaliation Provision and the Dilemma of the "Unsolicited Internal Complaint", 56 St. Louis U. L.J. 331 (2011)

Danielle Rudes, Framing Organizational Reform: Misalignments and Disputes among Parole and Union Middle Managers, 34 Law & Pol'y 1 (2012)

Joseph Seiner, Punitive Damages, Due Process, and Employment Discrimination, 97 Iowa L. Rev. 473 (2012)

Emily Siedell, Comment: Swarna and Baoanan: Unraveling the Diplomatic Immunity Defense to Domestic Worker Abuse, 26 Md. J. Int'l L. 173 (2011)

Sara Slinn & William Herbert, Some Think of the Future: Internet, Electronic, and Telephonic Labor Representation Elections, 56 St. Louis U. L.J. 171 (2011)

Robert Sprague, Invasion of the Social Networks: Blurring the Line Between Personal Life and the Employment Relationship, 50 U. Louisville L. Rev. 1 (2011)

Kerri Stone, Shortcuts in Employment Discrimination Law, 56 St. Louis U. L.J. 111 (2011)

Daniel Suhr, The Religious Liberty of Judges, 20 Wm. & Mary Bill Rts. J. 179 (2011)

Symposium: Keeping the Needs of Students with Disabilities on the Agenda: Current Issues in Special Education Advocacy, 20 Am. U. J. Gender Soc. Pol'y & L. 1 (2011)

Andrew Taslitz, Reciprocity and the Criminal Responsibility of Corporations, 41 Stetson L. Rev. 73 (2011)

Robert Tepper & Craig White, Workplace Harassment in the Academic Environment, 56 St. Louis U. L.J. 81 (2011)

Scott Thompson, Comment: Open for Business: The ADA Beyond an Employer's Front Door, 18 Tex. Wesleyan L. Rev. 383 (2011)

Jonathan Todres, Widening Our Lens: Incorporating Essential Perspectives in the Fight Against Human Trafficking, 33 Mich. J. Int'l L. 53 (2011)

Lindsey Tucker, Note: High Stakes: How to Define "Disability" in Medical Marijuana States in Light of the Americans with Disabilities Act, Canadian Law, and the Impact on Employers, 21 Ind. Int'l & Comp. L. Rev. 359 (2011)

Suzanna Walters, The Few, the Proud, the Gays: Don't Ask, Don't Tell and the Trap of Tolerance, 18 Wm. & Mary J. Women & L. 87 (2011)

Amy Wax, Supply Side or Discrimination? Assessing the Role of Unconscious Bias, 83 Temp. L. Rev. 877 (2011)

Amy Wax, Disparate Impact Realism, 53 Wm. & Mary L. Rev. 621 (2011)

Ryan Wiesner, Comment:  A State-by-State Analysis of Inevitable Disclosure: A Need for Uniformity and a Workable Standard, 16 Marq. Intell. Prop. L. Rev. 211 (2012)

Donna Young, The Constitutional Parameters of New York State's Domestic Workers Bill of Rights: Balancing the Rights of Workers and Employers, 74 Alb. L. Rev. 1769 (2010/2011)

Marina Zaloznaya & Laura Beth Nielsen, Mechanisms and Consequences of Professional Marginality: The Case of Poverty Lawyers Revisited, 36 Law & Soc. Inquiry 919 (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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To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at:
Ellen Dannin, Professor of Law
Pennsylvania State University
Dickinson School of Law
327 Katz Building
University Park, PA 16802-1912