Labor and Employment Relations Association
Labor and Employment Law News - November 2006
Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2006
LEL Section Business
The LEL Section Meeting will be held Friday, January 5, 2007, 12:30 p.m. 2:15 p.m. At the Labor & Employment Law Section Meeting during the Annual Conference elections for officers will be held.
Section Nominations
Please take notice Section By-Laws provide:
"A nominating committee consisting of the Past-Chair and two other members of the Board shall be responsible for presenting a slate of candidates for election as officers and members of the Board to the annual business meeting. Additional nominations supported by at least five members may be submitted to the Secretary-Treasurer in advance of the business meeting. "
The Secretary-Treasurer is Philip Harvey, Professor of Law, Rutgers School of Law - Camden
217 North Fifth Street. Camden, NJ 08102
Panel: Labor and Employment Law Section Meeting Program
Chair : Howard Wial, The Brookings Institution
Presentations :
Issues of Federal Preemption of State and Local Labor Ordinances and Implications for Future Action, Craig Becker, SEIU
Beyond the Wage Floor: Can Industry Lining Wage Ordinances Help Rebuild Good Jobs in Key Sectors? Annette Bernhardt, Paul Sonn and Jennifer Sung, Brennan Center for Justice
Local Efforts to Protect Workers and Communities, Nancy Schiffer, AFL-CIO
Local Efforts as Part of a National Labor Strategy, Fred Feinstein, University of Maryland
Labor and Employment Law News
Federal Agency May be Joint Employer of Private Contractor
Contracting out government work to a private contractor is no guarantee that a government agency will not be found jointly liable for legal violations. In a recent case, the U.S. Marshals Service was found to be a joint employer and therefore liable for damages under the Rehabilitation Act after it had contracted with private companies for court security officers at federal courthouses. Although the private contractors were responsible for oversight and pay, the U.S. Marshals Service continued to exercise control and oversight by training, setting standards, and issuing assignments to the contractor's employees. The court found that the Marshals Service had retained enough control of terms and conditions of employment to be the employer of employees who worked for the private contractor. International Union, United Gov't Sec. Officers of Am. v. Clark, Case No.02-1484 (GK) (D.D.C. Sept. 11, 2006).
Title VII Protects Non-Minority Employees Who Complain about Discriminatory Conduct
The Third Circuit Court of Appeals recently held that Title VII protected white employees who were discriminated against after they complained about racially discriminatory treatment of their fellow employees. In this case, police officers objected to the use of racial slurs, putting minority officers in dangerous situations, and refusing them the support nonminority officers received. They were then subjected to similar treatment and were threatened and called rats and snitches. The court concluded that under the standard of Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (June 27, 2006), the white officers were likely to be able to establish that they had suffered employment actions that were so materially adverse and retaliatory they could dissuade a reasonable worker from making or supporting a charge of discrimination. Moore v. Philadelphia, Case No.03-1465 (3d Cir. Aug. 30, 2006).
Confusion Over Overtime Requirements
The recent changes to eligibility for overtime and minimum wages have contributed to the confusion for many employers and employees. A recent case involved a help desk employee who provided information to customers. The employee had a degree in computer information systems. The employer claimed he was a computer professional and an executive and therefore not entitled to overtime, and the employee failed to ask for or record overtime hours for several years because he thought he was not entitled to it. The court, however, found that although the employee had technical skills and performed tasks that involved consulting, analysis, and testing concerning computers, these were insufficient to bring him into the exemption for computer programmers, network designers, and software designers. Hunter v. Sprint Corp., Case No.04-0376 (D.D.C. Sept. 22, 2006).
Web Links
Paul C. Light, The New True Size of Government (August 2006) http://wagner.nyu.edu/performance/files/True_Size.pdf
J. Paul Leigh, Costs Differences Across Demographic Groups and Types of Occupational Injuries and Illnesses http://www3.interscience.wiley.com/cgi-bin/abstract/112750746/ABSTRACT
Georgetown University Law Center, Workplace Flexibility 2010, Promoting Children's Well-Being: The Role of Workplace Flexibility http://www.law.georgetown.edu/workplaceflexibility2010/documents/FF_Color_CD_Facts.pdf
Lisa Clemans-Cope Bowen Garrett Catherine Hoffman, Kaiser Commission on Medicaid and the Uninsured - Changes in Employees' Health Insurance Coverage, 2001-2005 http://www.kff.org/uninsured/upload/7570.pdf
John Holahan & Allison Cook, Kaiser Commission on Medicaid and the Uninsured - Why Did the Number of Uninsured Continue to Increase in 2005? http://www.kff.org/uninsured/upload/7571.pdf
Conference Board, Corporate Voices for Working Families, Partnership for 21st Century Skills, and the Society for Human Resource Management, Are They Really Ready to Work?
http://www.conference-board.org/pdf_free/BED-06-Workforce.pdf
Daniel Menzies, et alia, Respiratory Symptoms, Pulmonary Function, and Markers of Inflammation Among Bar Workers Before and After a Legislative Ban on Smoking in Public Places http://jama.ama-assn.org/cgi/content/short/296/14/1742
Abraham Mosisa, Labor Force Characteristics of Second-Generation Americans http://www.bls.gov/opub/mlr/2006/09/art2full.pdf
Human Rights Campaign Foundation, Corporate Equality Index http://www.hrc.org/Template.cfm?Section=Get_Informed2&CONTENTID=31668&TEMPLATE=/ContentManagement/ContentDisplay.cfm
Recent Labor and Employment Law Articles
Adila Abusharaf, Women in Islamic Communities: The Quest for Gender Justice Research, 28 Hum. Rts. Q. 714 (2006)
David Angueira & David Conforto, Without a Remedy: The Massachusetts Whistleblower's Brush with ERISA 39 Suffolk U.L. Rev. 955 (2006)
Daniel Applegate, Comment: The NBA Gets a College Education: An Antitrust and Labor Analysis of the NBA's Minimum Age Limit, 56 Case W. Res. L. Rev. 825 (2006)
Denis Arnold & Laura Hartman, Worker Rights and Low Wage Industrialization: How to Avoid Sweatshops, 28 Hum. Rts. Q. 676 (2006)
Richard Banks, Jennifer Eberhardt & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Cal. L. Rev. 1169 (2006)
Lisa Blomgren Bingham, When We Hold No Truths to Be Self-Evidence: Truth, Belief, Trust, and the Decline in Trials, 2006 J Disp. Resol. 131
Gary Blasi & John Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 Cal. L. Rev. 1119 (2006)
Francis Bok, Escape to Freedom: A Former Slave's Story, 1 Intercultural Hum. Rts. L. Rev. 55 (2006)
Andrea Brustein, Comment: Casual Workers and Employee Benefits: Staying Ahead of the Curve.,7 U. Pa. J. Lab. & Emp. L. 695 (2005)
Georges Cavalier & Robert Upex, The Concept of Employment Contract in European Union Private Law, 55 Int'l & Comp. L.Q. 587 (2006)
Mark Casciari & Ian Morrison, Should the Securities Exchange Act Be the Sole Federal Remedy for an ERISA Fiduciary Misrepresentation of the Value of Public Employer Stock? 39 J. Marshall L. Rev. 637 (2006)
Debra Charish, Comment: Union Neutrality Law or Employer Gag Law? Exploring NLRA Preemption of New York Labor Law Section 211-A,14 J.L. & Pol'y 779 (2006)
Gary Clendenin, Note: Allaying the Outsourcing Tempest: A Candid Look at Outsourcing Vis-a-vis the Future of American Jobs, 14 U. Miami Bus. L. Rev. 295 (2006)
Lisa Cox, Note: The "Tainted Decision-making Approach": A Solution for the Mixed Messages Batson Gets from Employment Discrimination, 56 Case W. Res. L. Rev. 769 (2006)
Charles Craver, Continuing to Treat Workers like Widgets and Digits, a review of Katherine V.w. Stone, from Widgets to Digits: Employment Regulation for the Changing Workplace, 7 U. Pa. J. Lab. & Emp. L. 747 (2005)
Justin Cummins & Meg Luger Nikolai, ERISA Reform in a Post-Enron World, 39 J. Marshall L. Rev. 563 (2006)
Simon Deakin & Mark Freedland, Updating International Labor Standards in the Area of Social Security: A Framework for Analysis, 27 Comp. Lab. L. & Pol'y J. 151 (2006)
Mamadou Diawara, Mobilizing Local Knowledge, 27 Comp. Lab. L. & Pol'y J. 225 (2006)
Christopher Drahozal, Arbitration Costs and Contingent Fee Contracts, 59 Vand. L. Rev. 729 (2006)
Deborah Dunn & Gary Chartier, Pursuing the Millennium Goals at the Grassroots: Selecting Development Projects Serving Rural Women in Sub-Saharan Africa, 15 Ucla Women's L.J. 71 (2006)
Jeffrey Ehrenpreis, Note: Controlling Our Borders Through Enhanced Employer Sanctions, 79 S. Cal. L. Rev. 1203 (2006)
Donna Euben & Barbara Lee, Faculty Discipline: Legal and Policy Issues in Dealing with Faculty Misconduct. 32 J.C. & U.L. 241 (2006)
Tamar Ezer & Susan Ross, Fact-finding as a Lawmaking Tool for Advancing Women's Human Rights, 7 Geo. J. Gender & L. 331 (2006)
Fourth Annual Employee Benefits Symposium, 39 J. Marshall L. Rev. 563 (2006)
Adrian Goldin, Extending Social Security Coverage: The Normative Route, 27 Comp. Lab. L. & Pol'y J. 257 (2006)
Larry Grudzien, The Great Vanishing Benefit, Employer Provided Retiree Medical Benefits: The Problem and Possible Solutions, 39 J. Marshall L. Rev. 785 (2006)
Eric Gilson, Exploring the Court of Arbitration for Sport, 98 Law Lib. J. 503 (2006)
Nina Golden, Pregnancy and Maternity Leave: Taking Baby Steps Towards Effective Policies, 8 J.L. & Fam. Stud. 1 (2006)
Leslie Green, Comment: H-2A Guest Worker Program: Employer Certification Process in Need of a Change, 73 Tenn. L. Rev. 81 (2005)
Emanuel Halper, Evolution and Maturity of the American Supermarket During World War II, 41 Real Prop. Prob. & Tr. J. 253 (2006)
Wendy Hensel & Gregory Jones, Bridging the Physical-Mental Gap: An Empirical Look at the Impact of Mental Illness Stigma on ADA Outcomes, 73 Tenn. L. Rev. 47 (2005)
Justin Holcombe, Solutions for Regulating Offshore Outsourcing in the Service Sector: Using the Law, Market, International Mechanisms, and Collective Organization as Building Blocks, 7 U. Pa. J. Lab. & Emp. L. 539 (2005)
John Howard, Setting Occupational Exposure Limits: Are We Living in a Post-OEL World? 7 U. Pa. J. Lab. & Emp. L. 513 (2005)
Yousef Jabareen, Law, Minority, and Transformation: A Critique and Rethinking of Civil Rights Doctrines, 46 Santa Clara L. Rev. 513 (2006)
Lindsay Jackson, Note: A Lesson from Germany on How the United States Could Reform its Laws on Dismissal, 4 Geo. J.L. & Pub. Pol'y 521 (2006)
Margaret Jackson, A Different Voicing of Unwelcomeness: Relational Reasoning and Sexual Harassment, 81 N.D. L. Rev. 739 (2005)
Renana Jhabvala & Shalini Sinha, Social Protection for Women Workers in the Informal Economy, 27 Comp. Lab. L. & Pol'y J. 167 (2006)
Jerry Kang & Mahzarin Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action", 94 Cal. L. Rev. 1063 (2006)
Karen Klein, A Judicial Mediator's Perspective: The Impact of Gender on Dispute Resolution: Mediation as a Different Voice, 81 N.D. L. Rev. 771 (2005)
Kenneth Kleinman & John Ward, The Intersection of Employer and Employee Responsibility: The Burdens of Showing Employer Knowledge and Employee Misconduct, 7 U. Pa. J. Lab. & Emp. L. 487 (2005)
Daniel Klaff, Evaluating Work: Enforcing Occupational Safety and Health Standards in the United States, Canada, and Sweden, 7 U. Pa. J. Lab. & Emp. L. 613 (2005)
Thomas Kleven, Brown's Lesson: To Integrate or Separate Is Not the Question, but How to Achieve a Non-Racist Society, 5 U. Md. L.J. Race Relig. Gender & Class 43 (2005)
Nancy Knauer, The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice, 28 U. Hawai`i L. Rev. 23 (2005)
Ronald Kramer, Generation Y: Tattoos, Piercings, and Other Issues for the Private and Public Employer, 38 Urb. Law. 593 (2006)
Linda Hamilton Krieger & Susan Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 Cal. L. Rev. 997 (2006)
Holning Lau, Transcending the Individualism Paradigm in Sexual Orientation Antidiscrimination Law, 94 Cal. L. Rev. 1271 (2006)
Audrey Lee, Negotiating Part-Time Work: An Examination of How Attorneys Negotiate Part-time Arrangements at Elite Law Firms, 6 Pepp. Disp. Resol. L.J. 405 (2006)
Rebecca Lee, The Organization as a Gendered Entity: A Response to Professor Schultz's the Sanitized Workplace, 15 Colum. J. Gender & L. 609 (2006)
Allison McClure, Comment: The Provisional Presumption: Do Professional Employees Really Have Equal Bargaining Power When They Enter into Employment-related Adhesion Contracts? 74 U. Cin. L. Rev. 1497 (2006)
Carley Mak, Comment: Fame, Fortune, and . . . Fourteen-hour Days? Open Casting Calls for Reality TV Contestants Are Pre-Employment Tests and Public Accommodations under the Americans with Disabilities Act, 26 Loy. L.A. Ent. L. Rev. 523 (2005-2006)
Melissa Martin, Comment: Civil Rights – ADEA – The Availability of Disparate Impact Claims, 73 Tenn. L. Rev. 99 (2005)
Craig Martin, Matthew Renaud & Omar Akbar, What's up on Stock-drops? Moench Revisited, 39 J. Marshall L. Rev. 605 (2006)
Mariel Martinez, Comment: The Hoffman Aftermath: Analyzing the Plight of the Undocumented Worker Through a "Wider Lens", 7 U. Pa. J. Lab. & Emp. L. 661 (2005)
John Matejkovic & Margaret Matejkovic, Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions, 39 Creighton L. Rev. 827 (2006)
Colleen Medill, Resolving the Judicial Paradox of "Equitable" Relief under ERISA Section 502(a)(3), 39 J. Marshall L. Rev. 827 (2006)
Filali Meknassi, Extending Social Security in the Developing Countries: Between Universal Entitlement and the Selectiveness of International Standards, 27 Comp. Lab. L. & Pol'y J. 207 (2006)
James Milles, Managing after a Disaster: or There and Back Again, 25 Legal Ref. Serv. Q. (1) 59 (2006)
Victor Mosoti, Africa in the First Decade of WTO Dispute Settlement, 9 J. Int'l Econ. L. 427 (2006)
Ravi Naidoo & Isobel Frye, The Role of Workers' Organizations in the Extension of Social Security to Informal Workers, 27 Comp. Lab. L. & Pol'y J. 187 (2006)
Richard Perna, Deceitful Employers: Intentional Misrepresentation in Hiring and the Employment at Will Doctrine, 54 U. Kan. L. Rev. 587 (2006)
Joel Quirk, The Anti-slavery Project: Linking the Historical and Contemporary 28 Hum. Rts. Q. 565 (2006)
Lucetta Pope, Recent Developments in Employment Law, 39 Ind. L. Rev. 925 (2006)
David Pratt, Standards of Practice for Pension Practitioners, 39 J. Marshall L. Rev. 667 (2006)
Arthur Read, Protecting Worker Rights in the Context of Immigration Reform, 9 J.L. & Soc. Change 65 (2006)
Emmanuel Reynaud, Social Security for All: Global Trends and Challenges, 27 Comp. Lab. L. & Pol'y J. 123 (2006)
Stephen Richey & Faith Isenhath, Survey: How Recent Kentucky Courts Are Applying the Retaliation Claim in Employment Cases, 33 N. Ky. L. Rev. 283 (2006)
Daniel Rosenthal, Charitable Choice Programs and Title VII's Co-religionist Exemption, 39 Creighton L. Rev. 641 (2006)
Robert Salais, On the Correct (And Incorrect) Use of Indicators in Public Action, 27 Comp. Lab. L. & Pol'y J. 237 (2006)
Eugene Scalia, Inspection and Enforcement Strategies at the U.S. Department of Labor, 7 U. Pa. J. Lab. & Emp. L. 529 (2005)
Jane Schachter, Sexual Orientation, Social Change, and the Courts, 54 Drake L. Rev. 861 (2006)
Paul Secunda, Inherent Attorney Conflicts of Interest under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries, 39 J. Marshall L. Rev. 721 (2006)
Victor Suane, Comment: Age and Race: The Court's Search for Equality Through the ADEA, 33 S.U. L. Rev. 399 (2006)
Alison Sulentic, Can Systems Analysis Help Us to Understand C.O.B.R.A.?: A Challenge to Employment-based Health Insurance, 39 J. Marshall L. Rev. 753 (2006)
Alain Supiot, The Outlines of a Framework Agreement on the Extension of Social Protection, 27 Comp. Lab. L. & Pol'y J. 273 (2006)
Alain Supiot, The Position of Social Security in the System of International Labor Standards, 27 Comp. Lab. L. & Pol'y J. 113 (2006)
Symposium to Honor Carol Gilligan, 81 N.D. L. Rev. 683 (2005)
Symposium: Understanding Economics Through Theology: Reflections on Robert Nelson's Economics as Religion, 56 Case W. Res. L. Rev. 547 (2006)
Symposium on Behavioral Realism, 94 Cal. L. Rev. 945 (2006)
Symposium: Empirical Studies of the Legal Profession: What Do We Know about Lawyers' Lives? 84 N.C. L. Rev. 1415 (2006)
Symposium: International Women's Human Rights Clinic Special Issue, 7 Geo. J. Gender & L. 331 (2006)
Symposium: Social Protection and Decent Work: New Prospects for International Labor Standards, 27 Comp. Lab. L. & Pol'y J. 113 (2006)
Symposium: Vanishing Trial, 2006 J. Disp. Resol. 1
Elaine Tan, Regulating Wages in Kind: Theory and Evidence from Britain, 22 J.L. Econ. & Org. 442 (2006)
Carrie Temm, Comment: Third-Party Retaliation Claims: Where to Draw the Line, 54 U. Kan. L. Rev. 865 (2006)
Gerald Torres, Some Observations on the Role of Social Change on the Courts, 54 Drake L. Rev. 895 (2006)
Mark Tushnet, The Role of Courts in Social Change: Looking Forward? 54 Drake L. Rev. 909 (2006)
Peter Tomasco, Note: Manufactured Nanomaterials: Avoiding TSCA and OSHA Violations for Potentially Hazardous Substances, 33 B.C. Envtl. Aff. L. Rev. 205 (2006)
Matthew Waldron, Note: Exploring Failed Electricity Deregulation: Lawyers' Role in Supporting a Healthy Marketplace, 19 Geo. J. Legal Ethics 1005 (2006)
Darnell Weeden, ERISA's Preemption Ruling Prevents a Patient from Suing an HMO under State Malpractice Law: After Aetna Health, Inc. v. Davila Who Will Grant the Working Middle Class a Meaningful Right to Be Heard? 7 U. Pa. J. Lab. & Emp. L. 715 (2005)
Nikita Williams, Note: HIV as an Occupational Disease: Expanding Traditional Workers' Compensation Coverage, 59 Vand. L. Rev. 937 (2006)
Melanie Winegar, Note: Big Talk, Broken Promises: How Title I of the Americans with Disabilities Act Failed Disabled Workers, 34 Hofstra L. Rev. 1267 (2006)
Xiuwen Zhao & Lisa Kloppenberg, Reforming Chinese Arbitration Law and Practices in the Global Economy, 31 U. Dayton L. Rev. 421 (2006)
