Labor and Employment Law News - May 2012

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

Our 15th Year
Published since 1997

May 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.

WARN Act Class Action

            In this case, the employer failed to give its employees the 60 days’ notice of a mass layoff or a plant closing required by the WARN Act. In general, employers that fail to give that notice must pay its affected employees for each day of notice not given, up to 60 days. Class actions can be a valuable tool when a large group of people have been harmed by the same defendant and especially when individual damages are so low that the cost of bringing individual lawsuits would allow a wrong-doer to avoid liability. Class actions also protect defendants from the costs of defending a series of lawsuits. A recent Alabama federal case demonstrates some of the legal tools and processes that are commonly used in class actions.  Weekes-Walker v. Macon County Greyhound Park, Inc., Case No.3:10-cv-895-MEF (M.D. Ala. Mar. 15, 2012) http://scholar.google.com/scholar_case?case=5943574644397084450&q=Weekes-Walker+v.+Macon+County+Greyhound+Park,+Inc&hl=en&as_sdt=2,39&as_vis=1

            Before litigating whether a wrong has been committed, bringing a case as a class action requires proving that a class action is appropriate. Plaintiffs who seek class action certification must show: (1) there are so many people in the class that it is not practical to join them in one case (numerosity); (2) there are common questions of law or fact among the members of the class (commonality); (3) the claims or defenses of the parties who will represent  parties are typical of the claims or defenses of the class (typicality);  and (4) the class representatives can adequately protect the interests of the members of the class. There are additional requirements which the court also discusses.

            In this case, roughly 2000 employees were laid off in separate waves on three dates without being given the notice required under the WARN Act. If each employee had to try a WARN Act case, the cost of litigation would far outweigh 60 days’ pay, and employers might face many law suits in which the facts were identical. In this case, the court decided to certify three sub-classes for each of the layoff dates, because the facts for each group differed, but within  each subclass there were common questions of law and fact within.  Each sub-class would have a member of that sub-class whose claim was typical of the sub-class act as its representative.

NLRA Protections for a Subcontractor’s Employees

            This case discusses the law that may apply in workforces that include employees and contractor employees. The employees worked for a subcontractor on the premises of the New York New York Casino. The subcontractor’s employees filed a case with the NLRB after they were forbidden from telling customers coming into the casino about their efforts to have their employer recognize their union. The decision’s first paragraph sums up the court’s reasoning and conclusions:

            “Under precedents of the Supreme Court and the National Labor Relations Board, a property owner generally may not bar its employees from distributing union-related handbills on the property. But a property owner generally may bar non-employees from doing so. In this case, the primary question raised by New York-New York Hotel and Casino in Las Vegas is whether a property owner may bar employees of an onsite contractor from distributing union-related handbills on the property. The problem for New York-New York is that this Court previously considered that question and held that the Board has discretion over how to answer it. On remand from this Court, the Board concluded that a property owner generally may not bar employees of an onsite contractor from distributing union-related handbills on the property. New York-New York asks us to overturn the Board’s ruling. That would require us to overrule our prior panel decision, which determined that the Board has discretion on this issue. We are of course bound by our prior panel decision and must reject New York-New York’s attempt to have us reopen it. New York-New York also raises a few separate points based on the particular facts of this case, but none suffices to overturn the Board’s ruling. We therefore deny New York-New York’s petition for review and grant the Board’s cross-application for enforcement of its order.”

New York-New York v. National Labor Relations Board, Case No.11-1098 (D.C. Cir. Apr. 17, 2012) http://www.cadc.uscourts.gov/internet/opinions.nsf/3BFB3AD4DC86D1DD852579E30050C7A1/$file/11-1098-1369164.pdf

When Wrongful Denial of Workers Compensation Becomes a Racketeer Influenced and Corrupt Organizations (RICO) Violation

            The Sixth Circuit Court of Appeals recently issued a 2-1 decision in which the majority found that the wrongful denial of workers compensation benefits formed the basis of a Racketeer Influenced and Corrupt Organizations Act - RICO violation.  A workers compensation claim is not the sort of lawsuit that normally leads to a RICO claim; however, this case may make others consider using RICO.

            On the one hand, RICO is an attractive claim, because plaintiffs may be entitled to treble damages. On the other hand, proving a RICO is a challenge. The statute is complex statute, and to describe this case succinctly proved to be so difficult, it seemed best to urge those who are interested to read the case. Brown v. Cassens Transport Co., Case No.10-2334 (6th Cir. Apr.6, 2012)  http://www.ca6.uscourts.gov/opinions.pdf/12a0095p-06.pdf

Entitled to Workers' Compensation? A Difficult Decision Made Even Harder

            If a worker is injured at work, the worker can get workers compensation benefits, so entitlement to worker’s compensation would seem to be an easy call.  However, it is amazing how tough it can be to decide what is work and what caused an injury – work or something else. For example, is an injury caused from playing on a company team social or business?

            A recent case from the 8th Circuit Court of Appeals provides a good example of facts surrounding an injury that could be difficult to decide. In addition, the case was made more difficult by evidence that the employer and workers compensation carrier had hidden and distorted information that would have shown the injured employee was entitled to workers compensation. If found to have done so, they may be liable for much more than workers compensation payments.  Nunn v. Noodles & Co., Case No.11-1531 (8th Cir. Mar. 22, 2012)

http://www.gpo.gov/fdsys/pkg/USCOURTS-ca8-11-01531/pdf/USCOURTS-ca8-11-01531-0.pdf

            In this case, the employee was seriously injured on her way to a meeting, held at a manager’s home, to discuss her new job duties when she was promoted to assistant manager of a restaurant. Her manager claimed that the meeting was social but, over time, he also said the meeting was for business. Over time, the evidence showed that the injured employee’s manager and workers compensation carrier distorted and hid information in order to deny her right to workers compensation. The court of appeals opinion observed, “In Minnesota, a worker may sue an entity that, in a manner that is outrageous and extreme, or egregiously cruel or venal, intentionally obstructs the worker’s right to benefits. . . .  Viewing the facts most favorably to Nunn, there are genuine issues of material fact whether Noodles intentionally obstructed her receipt of workers’ compensation benefits through Gibson’s fabrications and its 17-month delay in payment.” The job of resolving those issues of fact belongs to the trial court, so the court of appeals remanded the case for trial consistent with the appellate court’s opinion.

Secret Taping, Information Requests, and the National Labor Relations Act

            A recent National Labor Relations Act case from the D.C. Court of Appeals concerns whether employees could legally be disciplined for secretly recording a disciplinary meeting. The court enforced the NLRB’s “well-reasoned decision” as supported by substantial evidence and controlling precedent. However, it addressed two issues at greater length. Stephens Media, LLC d/b/a Hawaii Tribune-Herald v. NLRB, Case No.11-1054 (D.C. Cir. Apr. 20, 2012) http://www.cadc.uscourts.gov/internet/opinions.nsf/2A75C6EDBCED5DBE852579E6004EB3D9/$file/11-1054-1369782.pdf

            The employer in this case was found to have committed a number of unfair labor practices, including refusing a request for a witness to be present at a meeting which the employee feared would result in discipline and disciplining employees for secretly recording a conversation between an employee and a manager. The court adopted the NLRB’s decision that the discipline violated the NLRA. The court also said that established precedent showed “there is no per se rule that the making of surreptitious recordings is unprotected activity; the Company had no policy in effect prohibiting audio recordings; and it is undisputed that the recording was not unlawful under state or local law.”

            The decision also discusses a number of other issues, including the nature of protected concerted activity and an employer’s obligations to provide information requested by the union in connection with the discipline of an employee, among others.

Web Links

International Labor Organization, World of Work Report 2012: Better Jobs for a Better Economy http://www.ilo.org/global/publications/books/world-of-work/WCMS_179453/lang--en/index.htm

World of Work report 2012: key charts 27 April 2012 http://www.ilo.org/global/publications/books/world-of-work/WCMS_179731/lang--en/index.htm

David Langdon & Rebecca Lehrman, The Benefits of Manufacturing Jobs (U.S. Department of Commerce, Economics and Statistics Administration, ESA

Issue Brief #01-12 (May 2012)

http://www.esa.doc.gov/sites/default/files/news/documents/1the_benefits_of_manufacturing_jobs_final_5_9_12.pdf

Manufacturing Workers Enjoy Higher Pay, More Benefits - Graphics

http://www.esa.doc.gov/Blog/2012/05/09/manufacturing-workers-enjoy-higher-pay-more-benefits

Linda Houser & Thomas P. Vartanian, Policy Matters: Public Policy, Paid Leave for New Parents, and Economic Security for U.S. Workers, Rutgers Center for Women and Work (CWW), April 30, 2012 http://www.nationalpartnership.org/site/DocServer/RutgersCWW_Policy_Matters_April2012.pdf?docID=10241

EBRI Notes – April 2012 'Characteristics of the Population With Consumer-Driven and High-Deductible Health Plans, 2005–2011,' and 'Time Trends in Poverty for Older Americans Between 2001–2009'  http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=5046

http://www.ebri.org/pdf/notespdf/EBRI_Notes_04_Apr-12.CDHP-EldPovty.pdf

401(k) Balances and Changes Due to Market Volatility – Data to May 1, 2012 http://www.ebri.org/?fa=401kbalances

EBRI Issue Brief – April 2012 Employment-Based Health Benefits: Trends in Access and Coverage, 1997-2010 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=5042

http://www.ebri.org/pdf/briefspdf/EBRI_IB_04-2012_No370_HI-Trends.pdf

NLRB Office of the General Counsel, Report on the Midwinter Meeting of the ABA Practice and Procedure Committee of the Labor and Employment Law Section, GC 12-05,  May 2, 2012  http://mynlrb.nlrb.gov/link/document.aspx/09031d458099457f

Link to NLRB Inspector General supplemental report on Member Flynn http://democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/documents/112/FlynnSupplementReport4-30-12.pdf

NLRB Office of the General Counsel, Division of Operations-Management, OM 12-50 Guideline Memorandum for Evaluating Location of Rerun Elections,  April 24, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d458094bd83

NLRB Office of the General Counsel, Division of Operations-Management

Memorandum, OM 12-49 Inclusion Training, April 16, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d4580938e74

NLRB Office of the General Counsel, Division of Operations-Management Memorandum, OM 12-38 Revisions to ULP Casehandling Manual, March 12, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d45808b62c1

NLRB General Counsel, GC 12-05 Report on the Midwinter Meeting of the ABA, May 2, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d458099457f

NLRB General Counsel, GC 12-04 Guidance Memorandum on Representation Case Procedure Changes, April 26, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d458099457a

NLRB General Counsel, GC 12-03, Summary of Operations FY 11, March 8, 2012 http://mynlrb.nlrb.gov/link/document.aspx/09031d45808abda1

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

John E. Bryson, Secretary of Commerce, Where the Jobs Are:  Can American Manufacturing Thrive Again?  House Subcommittee on Commerce, Manufacturing and Trade, Committee on Energy and Commerce April 19, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/bryson_041912.pdf

Lawrence Strickling, Assistant Secretary for Communications and Information, NTIA, Privacy and Innovation:  Does the President's Proposal Tip the Scale? House Subcommittee on Commerce, Manufacturing and Trade, Committee on Energy and Commerce  March 29, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/strickling032912.pdf

Fiona Alexander, Associate Administrator, Office of International Affairs, NTIA, Cybersecurity:  Threats to Communications Networks and Public-Sector Responses, House Subcommittee on Communications and Technology, Committee on Energy and Commerce  March 28, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/alexander032812.pdf

Dr. Patrick Gallagher, Under Secretary for Standards and Technology, NIST  American Manufacturing and Job Repatriation, House Subcommittee on Commerce, Justice, Science and Related Agencies, Committee on Appropriations  March 28, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/gallagher_032812_manufacturing.pdf

Dr. Patrick Gallagher, Forensic Science, Under Secretary for Standards and Technology, NIST, Senate Committee on Commerce, Science, and Transportation March 28, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/gallagher_032812.pdf

Mary Kicza, Assistant Administrator of the National Environmental Satellite, Data, and Information Service and Vice Chair of the NOAA Observing Systems Council, NOAA, To Observe and Predict:  How NOAA Procures Data for Weather Forecasting, House Subcommittee on Energy and Environment, Committee on Science, Space and Technology  March 28, 2012 http://www.commerce.gov/sites/default/files/documents/2012/april/kicza032812.pdf

OSHA, Communicating OSHA Fatality Inspection Procedures to a Victim’s Family April 17, 2012  http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-153.pdf

Economics and Statistics Administration & U.S. Patent and Trademark Office, Intellectual Property and the US Economy: Industries in Focus March 2012 http://www.esa.doc.gov/sites/default/files/reports/documents/ipandtheuseconomyindustriesinfocus.pdf

Paula England, Janet Gornick, and Emily Fitzgibbons Shafer, Women's employment, education,and the gender gap in 17 countries, Monthly Labor Review April 2012 http://www.bls.gov/opub/mlr/2012/04/art1full.pdf

Dixie Sommers and Teresa L. Morisi, Employment projections through the lens of education and training, Monthly Labor Review April 2012 http://www.bls.gov/opub/mlr/2012/04/art2full.pdf

Richa Ajmera, Nancy Kook, and Jeff Crilley, Impact of commodity price movements on CPI inflation, Monthly Labor Review April 2012 http://www.bls.gov/opub/mlr/2012/04/art3full.pdf

Aylin Kumc, No longer tax exempt: income tax calculation in the Consumer Expenditure Survey, Monthly Labor Review April 2012 http://www.bls.gov/opub/mlr/2012/04/art4full.pdf

Department of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover – February 2012 http://www.bls.gov/news.release/pdf/jolts.pdf

Department of Labor, The Latino Labor Force in the Recovery http://www.dol.gov/_sec/media/reports/hispaniclaborforce/

Department of Labor, The Economic Impact of Unemployment Insurance http://www.dol.gov/dol/maps/euc/euc.htm

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, 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, Troubled Asset Relief Program - Government's Exposure to AIG Lessens as Equity Investments Are Sold GAO-12-574, May 7, 2012 http://www.gao.gov/products/GAO-12-574

Government Accountability Office, Defense Infrastructure - DOD Can Improve Its Response to Environmental Exposures on Military Installations GAO-12-412, May 1, 2012 http://www.gao.gov/products/GAO-12-412

Government Accountability Office, Energy Conservation and Climate Change - Factors to Consider in the Design of the Nonbusiness Energy Property Credit GAO-12-318, Apr 2, 2012 http://www.gao.gov/products/GAO-12-318

Government Accountability Office, Tactical Aircraft - F-22A Modernization Program Faces Cost, Technical, and Sustainment Risks GAO-12-447, May 2, 2012 http://www.gao.gov/products/GAO-12-447

Government Accountability Office, Medicare - Implementation of Financial Incentive Programs under Federal Fraud and Abuse Laws GAO-12-355, Mar 30, 2012 http://www.gao.gov/products/GAO-12-355

Government Accountability Office, Prescription Drugs - FDA Has Met Most Performance Goals for Reviewing Applications GAO-12-500, Mar 30, 2012 http://www.gao.gov/products/GAO-12-500

Government Accountability Office, Private Health Insurance Estimates of Individuals with Pre-Existing Conditions Range from 36 Million to 122 Million GAO-12-439, Mar 27, 2012  http://www.gao.gov/products/GAO-12-439

Government Accountability Office, Medicaid - Federal Oversight of Payments and Program Integrity Needs Improvement GAO-12-674T, Apr 25, 2012 http://www.gao.gov/products/GAO-12-674T

Government Accountability Office, Federal Employees' Compensation Act - Status of Previously Identified Management Challenges GAO-12-508R, Mar 21, 2012 http://www.gao.gov/products/GAO-12-508R

Government Accountability Office, Financial Literacy - Enhancing the Effectiveness of the Federal Government's Role GAO-12-636T, Apr 26, 2012 http://www.gao.gov/products/GAO-12-636T

Government Accountability Office, U.S. Postal Service - Field Offices' Role in Cost-Reduction and Revenue-Generation Efforts GAO-12-506, Apr 25, 2012 http://www.gao.gov/products/GAO-12-506

Government Accountability Office, Federal Employees' Compensation Act - Status of Previously Identified Management Challenges GAO-12-508R, Mar 21, 2012 http://www.gao.gov/products/GAO-12-508R

Government Accountability Office, Medicare Advantage - Quality Bonus Payment - Demonstration Undermined by High Estimated Costs and Design Shortcomings GAO-12-409R, Mar 21, 2012 http://www.gao.gov/products/GAO-12-409R

Government Accountability Office, Medicare Program Integrity - CMS Continues Efforts to Strengthen the Screening of Providers and Suppliers GAO-12-351, Apr 10, 2012 http://www.gao.gov/products/GAO-12-351

Government Accountability Office, Defined Contribution Plans - Approaches in Other Countries Offer Beneficial Strategies in Several Areas GAO-12-328, Mar 22, 2012 http://www.gao.gov/products/GAO-12-32

Government Accountability Office, Private Health Insurance - Estimates of Individuals with Pre-Existing Conditions Range from 36 Million to 122 Million GAO-12-439, Mar 27, 2012 http://www.gao.gov/products/GAO-12-439

Government Accountability Office, Workplace Safety and Health - Multiple Challenges Lengthen OSHA's Standard Setting, GAO-12-330, Apr 2, 2012 http://www.gao.gov/products/GAO-12-330

Government Accountability Office, Workplace Safety and Health Multiple Challenges Lengthen OSHA's Standard Setting, GAO-12-602T, Apr 19, 2012 http://www.gao.gov/products/GAO-12-602T

Government Accountability Office, U.S. Postal Service - Challenges Related to Restructuring the Postal Service's Retail Network, GAO-12-433, Apr 17, 2012 http://www.gao.gov/products/GAO-12-433

AFL-CIO, Death on the Job: The Toll of Neglect - A National And State-By-State Profile of Worker Safety And Health In the United States, May 2, 2012 http://www.aflcio.org/Issues/Job-Safety/Death-on-the-Job-Report

Workplaces Respond to Domestic and Sexual Violence: A National Resource Center  http://www.workplacesrespond.org/

Contract Killers: Government Agencies Award Taxpayer Dollars to Contractors That Disregard Worker Health and Safety  http://www.citizen.org/documents/contract-killers-worker-safety-report.pdf

National Consumer Law Center, Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses  April 11, 2012 http://www.nclc.org/issues/broken-records.html

http://www.nclc.org/images/pdf/pr-reports/broken-records-report.pdf

U.S. Congress Congressional Joint Economic Committee, STEM Education: Preparing for the Jobs of the Future, Apr 10 2012 http://jec.senate.gov/public/index.cfm?p=Reports1&ContentRecord_id=92c8daf4-47c8-416a-bfa4-984cc8b6525a

U.S. Congress Joint Economic Committee, Understanding the Economy: State-by-State Snapshots

April 2012 (based on March 2012 Data) http://jec.senate.gov/public/index.cfm?p=StateByStateReport

Executive PayWatch http://www.aflcio.org/index.php/Corporate-Watch/CEO-Pay-and-the-99/Trends-in-CEO-Pay

Recent Labor and Employment Law Articles

James Allen & Richard Bales, ERISA Failures and the Erosion of Workers' Rights: The Urgent Need to Protect Private and Public Workers' Pensions and Benefits, 75 Alb. L. Rev. 449 (2011/2012)

Emily Barker, The Changing Face of Liberalism in Workplace Democracy: The Shift from Collective to Individual Rights, 36 Vt. L. Rev. 303 (2011)

David Barnhorn & Joey Pegram, Note: Speak the Truth and Tell No Lies: An Update for the Employee Polygraph Protection Act, 29 Hofstra Lab. & Emp. L.J. 141 (2011)

Roger Baron &  Anthony Lamb, The Revictimization of Personal Injury Victims by ERISA Subrogation Claims, 45 Creighton L. Rev. 325 (2012)

Leslie Barry, Note: Determining the Proper Standard of Proof for Incapacity under the Family and Medical Leave Act, 97 Iowa L. Rev. 931 (2012)

Stephen Befort, Public-Sector Employment under Siege, 87 Ind. L.J. 231 (2012)

Ashley Behre, Note: Coming out to Fight for Our Country: Achieving Equality for Gay Service Members in a Post -"Don't Ask, Don't Tell" Military, 29 Hofstra Lab. & Emp. L.J. 189 (2011)

Jennifer Bennett, Comment: Can You Blow the Whistle Anywhere? Internal Complaints under ERISA Section 510, 8 Seton Hall Cir. Rev. 159 (2011)

Mark Berghausen, Comment: Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity, 105 Nw. U. L. Rev. 1281 (2011)

Sarah Braun, Comment: The Obama "Crackdown": Another Failed Attempt to Regulate the Exploitation of Unpaid Internships, 41 Sw. L. Rev. 281 (2012)

Brooke Burns, Note: Prescription for Change: Third Circuit Diagnoses Pharmaceutical Sales Representatives as Exempt from Overtime Pay, 56 Vill. L. Rev. 671 -698 (2012)

Christopher Cameron, What's Prologue Is Past: How the Present of International Labor Law Predicts the past of U.S. Labor Law, 18 Sw. J. Int'l L. 145 (2011)

Kenneth. Casebeer, My Sons and Daughters, How Do I Immiserate Thee: Let Me Count the Ways, 29 Hofstra Lab. & Emp. L.J. 1 (2011)

Mathew Coleman, The "Local" Migration State: The Site-specific Devolution of Immigration Enforcement in the U.S. South, 34 Law & Pol'y 159 (2012)

Michele Colucci & Arnout Geeraert, The "Social Dialogue" in European Professional Football. 33 Comp. Lab. L. & Pol'y J. 203 (2012)

Laura Cooper, Employment Arbitration 2011: A Realist's View, 87 Ind. L.J. 317 (2012)

Luisa Corazza, In Search of Industrial Self-Regulation or Efficient Settlement of Employment Disputes? The Case of Italian Arbitration Reform, 33 Comp. Lab. L. & Pol'y J. 235 (2012)

Julie Covel, Comment:  The Supreme Court Writes a Fractured Fable of the Cat's Paw Theory, 51 Washburn L.J. 159 (2011)

Breen Creighton &  Pam Nuttall. Good Faith Bargaining Down Under, 33 Comp. Lab. L. & Pol'y J. 257 (2012)

Richard Croucher, et alia, A Rawlsian Basis for Core Labor Rights, 33 Comp. Lab. L. & Pol'y J. 297(2012)

Kenneth Dau-Schmidt, Keynes Was Right! 87 Ind. L.J. 59 (2012)

Gregory Delassus, Note: Chamber of Commerce v. Whiting and the Future of State Immigration Laws, 56 St. Louis U. L.J. 613 -632 (2012)

Zev Eigen, et alia, Shifting the Paradigm of the Debate: A Proposal to Eliminate At-Will Employment and Implement a "Mandatory Arbitration Act," 87 Ind. L.J. 271 (2012)

Deborah Eisenberg, Wal-mart Stores v. Dukes: Lessons for the Legal Quest for Equal Pay, 46 New Eng. L. Rev. 229 (2012)

Catherine Fisk, The Role of Private Intellectual Property Rights in Markets for Labor and Ideas: Screen Credit and the Writers Guild of America, 1938-2000, 32 Berkeley J. Emp. & Lab. L. 215 (2011)

Robert Flanagan,. Labor Policy in the Great Recession, 87 Ind. L.J. 43 (2012)

Richard Ford, Beyond Good and Evil in Civil Rights Law: The Case of Wal-mart v. Dukes, 32 Berkeley J. Emp. & Lab. L. 513 (2011)

Joel Friedman, The Impact of the Obama Presidency on Civil Rights Enforcement in the United States, 87 Ind. L.J. 349 (2012)

Timothy Glynn, Taking Self-Regulation Seriously: High-Ranking Officer Sanctions for Work-Law Violations, 32 Berkeley J. Emp. & Lab. L. 279 (2011)

Lonnie Golden, Becoming Too Small to Bail? Prospects for Workers in the 2011 Economy and 112th Congress, 87 Ind. L.J. 11 (2012)

Zachary Golden, Note: Is this Heaven? No, It's I.O.U.: Why Major League Baseball must Modify its Current Revenue-Sharing and Luxury-Tax Procedures, 45 Suffolk U.L. Rev. 125 (2011)

William Gould, Beyond Labor Law: Private Initiatives to Promote Employee Freedom of Association in the Obama Era, 87 Ind. L.J. 69 (2012)

Michael Green, Reading Ricci and Pyett to Provide Racial Justice Through Union Arbitration, 87 Ind. L.J. 367 (2012)

Jennifer Gregorin, Comment: Hidden Beneath the Waves of Immigration Debate: San Francisco's Sanctuary Ordinance, 6 Liberty U. L. Rev. 175 (2011)

Desiree Grace, Comment: Supervisory Liability Post-Iqbal: A "Misnomer" Indeed, 42 Seton Hall L. Rev. 317(2012)

Tristin Green, The Future of Systemic Disparate Treatment Law, 32 Berkeley J. Emp. & Lab. L. 395 (2011)

Ugljesa Grusic, Jurisdiction in Employment Matters under Brussels I: A Reassessment, 61 Int'l & Comp. L.Q. 91 (2012)

Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berkeley J. Emp. & Lab. L. 455 (2011)

Joel Hesch, Whistleblower Rights and Protections: Critiquing Federal Whistleblower Laws and Recommending Filling in Missing Pieces to Form a Beautiful Patchwork Quilt, 6 Liberty U. L. Rev. 51 (2011)

Andrew Herman, Note: Reassessing the Role of Supplier Codes of Conduct: Closing the Gap Between Aspirations and Reality, 52 Va. J. Int'l L. 445 (2012)

James Hoy, Comment: Constitutional Law – Separation of Powers: The North Dakota Supreme Court Balances the Constitutional Authority of the State Board of Higher Education, the State Legislature, and the Judiciary, 86 N.D. L. Rev. 905 (2010)

Harry Hutchison, Waging War on "Unemployables"? Race, Low-wage Work, and Minimum Wages: The New Evidence, 29 Hofstra Lab. & Emp. L.J. 25 (2011)

Herman Johnson, The Evolving Strong-Basis-in-Evidence Standard, 32 Berkeley J. Emp. & Lab. L. 347 (2011)

Timothy Jost, Loopholes in the Affordable Care Act: Regulatory Gaps and Border Crossing Techniques and How to Address Them, 5 St. Louis U. J. Health L. & Pol'y 27 (2011)

Daniel Kaspar, Defined Benefits, Undefined Costs: Moving Toward a More Transparent Accounting of State Public Employee Pension Plans, 3 Wm. & Mary Pol'y Rev. 129 (2011)

Thomas Keenan, Note: Circuit Court Interpretations of Garcetti v. Ceballos and the Development of Public Employee Speech, 87 Notre Dame L. Rev. 841 (2011)

Andrew Kim, Culture Matters: Cultural Differences in the Reporting of Employment Discrimination Claims, 20 Wm. & Mary Bill Rts. J. 405 (2011)

Heather Kolinsky, Taking Away an Employer's Free Pass: Making the Case for a More Sophisticated Sex-Plus Analysis in Employment Discrimination Cases, 36 Vt. L. Rev. 327 (2011)

Zachary Kramer, Of Meat and Manhood, 89 Wash. U. L. Rev. 287 (2011)

Rebecca Kruser, Note: Simulacra of Virtue: The Responsibility of Labor Arbitrators in Employee Drug Testing Grievances, 10 Geo. J.L. & Pub. Pol'y 239 (2012)

Michal Kukreja, Employees Should Be Treated Equally: A Plea to Change the Workers' Compensation Retaliation Statute, 39 Cap. U. L. Rev. 961 (2011)

John Kupchinsky, The Role of Pennsylvania's Commonwealth Court in the History of the State's Prevailing Wage Law, 21 Widener L.J. 105 (2011)

David Lacy & Alexandra Ray, Reckoning with Employment Discrimination in a "Post Racial" Era. 26 J. Civ. Rts. & Econ. Dev. 41 (2011)

Brittney Lane, Comment: Testing the Borders: The Boundaries of State and Local Power to Regulate Illegal Immigration, 39 Pepp. L. Rev. 483 (2012)

Rik Lineback, Comments on Proposed Changes to Captive Audience Speech Rules and Use of Card Checks, 87 Ind. L.J. 165 (2012)

Sean McCormick, Comment: An Uneven Playing Field: Public Employees Are Disadvantaged in FMLA Eligibility / Notice Disputes, 36 U. Dayton L. Rev. 363 (2011)

Tennille McCray, Note: Coloring Inside the Lines: Finding a Solution for Workplace Colorism Claims, 30 Law & Ineq. 149(2012)

Nora Macey, Proposals to Reinstate the Voluntary Recognition Bar and Rein in Captive Audience Speeches: A Rationale for Change at the National Labor Relations Board, 87 Ind. L.J. 177 (2012)

Martin Malin, The Arbitration Fairness Act: It Need Not and Should Not Be an All or Nothing Proposition, 87 Ind. L.J. 289 (2012)

Eliseo Medina,  The Collective Rights of Immigrant Workers: Organizing in Difficult Times, 32 Berkeley J. Emp. & Lab. L. 531 (2011)

Emily Miller, The Strongest Defense You've Never Heard Of: The Constitution's Federal Enclave Doctrine and its Effect on Litigants, States, and Congress, 29 Hofstra Lab. & Emp. L.J. 73 (2011)

Matthew Moderson, Comment: The National Labor Relations Board after New Process Steel: The Case for Amending Quorum Requirements under the National Labor Relations Act, 80 UMKC L. Rev. 463 (2011)

Amy Monahan, The ACA, the Large Group Market, and Content Regulation: What's a State to Do? 5 St. Louis U. J. Health L. & Pol'y 83 -102 (2011)

Alexander Naito, Comment: A Fourth Amendment Status Update: Applying Constitutional Privacy Protection to Employees' Social Media Use, 14 U. Pa. J. Const. L. 849 (2012)

Karl Nelson, Moving Beyond the Zero-sum Game: Joint Management-Employee Committees in the Twenty-first Century, 87 Ind. L.J. 119 (2012)

Christine O'Brien, The First Facebook Firing Case under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media, 45 Suffolk U.l. Rev. 29 (2011)

Michael O'Neil, Note: Twombly and Iqbal: Effects on Hostile Work Environment Claims, 32 B.C. J.L. & Soc. Just. 151 (2012)

Angela Onwuachi-Willig & Mario Barnes, The Obama Effect: Understanding Emerging Meanings of "Obama" in Anti-discrimination Law, 87 Ind. L.J. 325 (2012)

Abigail Perdue, Justifying GINA, 78 Tenn. L. Rev. 1051 (2011)

Michael Pinsof, Ethical Dilemma for Non-physician Medical Care Providers: Directly Advise and Advocate for the Patient or Keep Your Job? A Reconciliation of Judicial and Legislative Attempts to Articulate a Public Policy, 14 Quinnipiac Health L.J. 203 (2011)

Nicole Buonocore Porter, Embracing Caregiving and Respecting Choice: An Essay on the Debate over Changing Gender Norms, 41 Sw. L. Rev. 1 (2011)

Jacqueline Rau, Note: No Fault Discrimination? Using the Americans with Disabilities Act as a Model for "Norm Advocating" Mediation in Title VII Disputes, 27 Ohio St. J. on Disp. Resol. 241 (2012)

Geoffrey Rapp, Mutiny by the Bounties? The Attempt to Reform Wall Street by the New Whistleblower Provisions of the Dodd-Frank Act, 2012 BYU L. Rev. 73

John Raudabaugh, Labored Law: Bilateralism or Pluralism, Ossification or Reformation? 87 Ind. L.J. 105 (2012)

Elizabeth. Riordan, Where the Heart Is: Amending the Fair Labor Standards Act to Provide Wage and Overtime Pay Protection to Agency-employed Home Health Aides, 85 St. John's L. Rev. 837 (2011)

Kermit Roosevelt, Not as Bad as You Think: Why Garcetti v. Ceballos Makes Sense, 14 U. Pa. J. Const. L. 631 (2012)

Elyce Rotella, Labor Policy and the Great Recession: An Economist's Perspective, 87 Ind. L.J. 63 (2012)

Albert Saulsbury, Devil Inside the Deal: An Examination of Louisiana Noncompete Agreements in Business Acquisitions, 86 Tul. L. Rev. 713 (2012)

David Schwartz, Claim-suppressing Arbitration: The New Rules, 87 Ind. L.J. 239 (2012)

Jeff Schwartz, Rethinking 401(k)s, 49 Harv. J. on Legis. 53 (2012)

Victoria Schwartz,  Title VII: A Shift from Sex to Relationships, 35 Harv. J.l. & Gender 209 (2012)

Paul Secunda, The Future of the NLRB Doctrine on Captive Audience Speeches, 87 Ind. L.J. 123 (2012)

Michael Selmi, Theorizing Systemic Disparate Treatment Law: After Wal-mart v. Dukes, 32 Berkeley J. Emp. & Lab. L. 477(2011)

Joseph Slater, Public-sector Labor in the Age of Obama, 87 Ind. L.J. 189 (2012)

Michael Smith, Note: EqualiTea: A Proposal for the Next Federal Surface Transportation Bill to Help Address Poverty and Climate Change, 3 Geo. Wash. J. Energy & Envtl. L. 129 (2012)

Symposium: Labor and Employment Law under the Obama Administration: A Time for Hope and Change? 87 Ind. L.J. 1 (2012)

Symposium: Protecting Workers' Rights in a Post-Wisconsin World: Strategies for Organizing and Action in an Era of Diminished Resources and Embattled Unions, 75 Alb. L. Rev. 413 (2011/2012)

Symposium: Working Group on the Future of Systemic Disparate Treatment Law, 32 Berkeley J. Emp. & Lab. L. 387 (2011)

Justine Tinkler, Resisting the Enforcement of Sexual Harassment Law, 37 Law & Soc. Inquiry 1 (2012)

Anthony Torrente, Note: The Dark Side of Professional Baseball: The Fall of Barry Bonds, 5 Alb. Gov't L. Rev. 352 (2012)

Phillip Vacchio & Joshua Wolinsky, Note: Genetic Information Nondiscrimination Act of 2008: It's in Title VII's Genes, 29 Hofstra Lab. & Emp. L.J. 229 (2011)

Michael Valenza,  Cigna v. Amara: Supreme Court Resolves Several ERISA Claim Issues While Leaving Others for the Lower Courts, 13 Transactions 139 (2011)

Marisa Warren & Arnie Pedowitz, Social Media, Trade Secrets, Duties of Loyalty, Restrictive Covenants and Yes, the Sky Is Falling, 29 Hofstra Lab. & Emp. L.J. 99 (2011)

Diana Watral, Comment: When "No" Is Not Enough: The Express Rejection of Sexual Advances under Title VII, 77 U. Chi. L. Rev. 521 (2010)

Sidney Watson, et alia, Creating Multi-state Qualified Health Plans in Health Insurance Exchanges: Lessons for Rural and Urban America from the Federal Employees Health Benefits Program, 5 St. Louis U. J. Health L. & Pol'y 103 (2011)

Jessie White, Note: Sustainable Growth & Development on the South Carolina Coastline: Opportunity for Local Governments to Pave the Way, 20 Southeastern Envtl. L.J. 61 (2011)

Deborah Widiss, Divergent Interests: Union Representation of Individual Employment Discrimination Claims, 87 Ind. L.J. 421 (2012)

Jay Youngdahl, The Time Has Come for a Sustainable Theory of Fiduciary Duty in Investment, 29 Hofstra Lab. & Emp. L.J. 115 (2011)

Noah Zatz, Introduction: Working Group on the Future of Systemic Disparate Treatment Law, 32 Berkeley J. Emp. & Lab. L. 387 (2011)

Justin Zimmerman, Note: Incentivizing Work at Older Ages: The Need for Social Security Reform, 19 Elder L.J. 485 (2012)

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.

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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