Labor and Employment Law News - November 2010

Labor and the Law: News and Current Events from the
LERA Section on Labor and Employment Law (LEL)
© 2010

The full text of many cases is now available free on-line. Where that is the case, links are provided. 

Procedure Matters

            Legal claims can be won or lost as much for procedural reasons, as for not having a legal claim.  In fact, losing for failing to dot procedural i’s may be even more painful if it means losing what may have been a valid claim.  These are the sorts of cases that give attorneys nightmares.

            The 10th Circuit Court of Appeals recently dismissed an age and sex discrimination discharge case because the employee had failed to list her termination on the face of her EEOC charge. The EEOC charge listed as illegal employer discrimination only “discipline, demotion, failure to advance”. She did, however, answer the EEOC charge form question: “what happened and why you feel the incident is discriminatory,” by writing, “see attachment.” The attachment was a five-page, single-spaced timeline  that included her termination.  In addition, her employer discussed her termination in its response to the charge, and the EEOC mediated her termination along with the other claims. Logsdon v. Turbines Inc., Case No.09-6296 (10th Cir.  Oct. 20, 2010).
http://www.ca10.uscourts.gov/opinions/09/09-6296.pdf

             The court dismissed her termination claim, because, it said, the attachment did not give the EEOC or employer notice that she was also complaining about her termination. In legal terms, she had failed to exhaust her administrative remedies as to the discharge. Her other discrimination claims were not dismissed.  The court held that exhausting her administrative remedies before the EECO was required in order for the court to have jurisdiction over the case.

            The court said that all other federal circuits and the Federal Rules of Civil Procedure treat administration exhaustion as an affirmative defense rather than as a jurisdictional requirement to suing under Title VII or the ADEA.  Only in the 10th Circuit is failure to include a claim on the charge form fatal. The decision by the three judges on this panel actually decision argued for overturning circuit precedent but felt they were bound by it.

Leaders and Supervisory Status

            The NLRA excludes supervisors from the definition of who is an employee. Only employees are protected by the National Labor Relations Act.  A recent NLRB case discusses whether a team leader was a supervisor – as defined by Sec. 2(11) of the NLRA.  If the team leader was an employee, then the employer committed unfair labor practices by suspending, firing, threatening, and interrogating team leaders about employee union activities, prohibiting the leaders from engaging in union activities, and giving raises to persuade employees to vote against the union; the leaders’ challenged ballots could be opened and counted in the union representation election; and the employer could be found to have committed objectionable conduct affecting the outcome of the election.  Pacific Coast M.S. Industries Co. Ltd., 355 NLRB No.226 (Sept. 30, 2010)
http://www.nlrb.gov/shared_files/Board%20Decisions/355/BDO.32-CA-22748.PacificCoast%20conformed.pdf

            The decision provides a good overview of a number of unfair labor practices, challenges to a voter, objectionable conduct that could be the basis for a re-run election, and supervisory status.  To be a supervisor under the NLRA a person must have “the authority to effectuate or effectively recommend at least one of the supervisory indicia enumerated in Section 2(11) of the Act, using independent judgment in the interest of the employer . . .to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

            In this case, the Board found that the leaders were not supervisors but, rather, were employees.  Actions, such as evaluating employee performance when that evaluation alone does not affect the terms of the employee. training employees, granting or denying time off, pay differentials, inclusion in training programs for supervisors, signing timesheets and timeclock corrections, and creating work rotation schedules are not listed in Sec. 2(11).

When Laws and Contracts Collide

            Finding the right courthouse door and be a challenge, especially in a system with federal and state. Sometimes more than one law can apply to a set of facts, and, when that happens, all laws may apply or some or all laws may be preempted by another law.  LERA LEL Newsletter discussions of preemption may be found in prior issues, such as July 2010; June 2010; and June 2007.

            Another problem of finding the right “courthouse” door occurs when a pre-dispute arbitration agreement requires that claims related to one’s employment must decided by an arbitrator, rather than a judge.  A recent case in which a plaintiff (Nicholas) sued his former employer (Grapetree).  Nicholas v. Grapetree Shores, Case No.08-3478 (3d Cir. Aug. 4, 2010)
http://www.ca3.uscourts.gov/opinarch/083478np.pdf

            Nicholas had been terminated by his employer when he tried to organize a union at his workplace.  After his charge with the National Labor Relations Board was settled, Nicholas went to work for the union that was organizing employees at Grapetree.  During a meeting at Grapetree to discuss the union, negative statements were made about unions and Nicholas, including that he had been terminated for misconduct.  Nicholas responded by filing a  lawsuit for defamation, breach of the settlement agreement, and intentional and negligent infliction of emotional distress, most of which were state claims.

            The defendants asked to have the lawsuit dismissed, because Nicholas had signed a pre-dispute arbitration agreement while he was employed by Grapetree that all legal claims arising out of his employment at Grapetree would be arbitrated.  The court found, however, that the statements made about Nicholas did not arise out his employment, because they arose years after his employment had ended and the statements concerned why Nicholas was no longer employed.  The court majority said, “The claims do not involve ‘Employee's dealings with Employer,’ because his dealings with [Grapetree] with respect to his post-employment organizing efforts are not the dealings of an ‘Employee’ with his ‘Employer.’ Rather, they are the dealings of a union organizer with a company and its management.”  As a result, he could sue in court.  (The dissenting judge concluded that the statements were covered by the arbitration agreement.)

            There is one more wrinkle in this case that involves finding the correct courthouse door.  The case was removed by the defendants from state court to federal court because the defendants said that the case involved a federal claim under Sec. 301 of Labor Management Relations Act.  The court of appeals did not discuss whether there was federal jurisdiction, so it is difficult to know what the claim under Sec.  301 was.  The only federal claim would seem to be the employer’s breach of the NLRA settlement agreement.  But if that was the case, only the NLRB has jurisdiction to deal with noncompliance.

            It may also be that Nicholas could have filed an NLRA charge against his former employer under Sec. 8(a)(1) on the grounds that Grapevine was interfering with, restraining, or coercing an employee in the exercise of his Sec. 7 rights.  Nicholas was no longer employed by Grapevine at the time, but Sec. 2(3) of the NLRA says that employee means any employee and “shall not be limited to the employees of a particular employer.”  Had Nicholas filed that charge, would the NLRA then have preempted his state claims if they involved the same conduct, or could he have pursued claims through the courts for his state claims, as well as with the NLRB?

Web Links

Congressional Budget Office, The Effect of the March Health Legislation on Prescription Drug Prices November 4, 2010, November 4, 2010 http://www.cbo.gov/ftpdocs/116xx/doc11674/11-04-Drug_Pricing.pdf

US DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part I http://www.dol.gov/ebsa/faqs/faq-aca.html

US DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part II  http://www.dol.gov/ebsa/faqs/faq-aca2.html

US DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part III  http://www.dol.gov/ebsa/faqs/faq-aca3.html

US DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part IV  http://www.dol.gov/ebsa/faqs/faq-aca4.html

Americans Rethinking Role of Work amid Painful Recession, 10/18/2010 http://www.cob.fsu.edu/Americans-rethinking-role-of-work-amid-painful-recession-says-COB-researcher

Recession Changing Work Ethic - Research by Prof. Wayne Hochwarter  10/23/2010 http://bbn.frn.com/fis/MyFlaNews/storypage.asp?site=mfln2-ip&storyID=13459

Anne Marie Lofaso, Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies, JOTWELL Nov. 1, 2010 http://worklaw.jotwell.com/judicial-amendments-treating-citizen-and-immigrant-workers-equally-badly-labor-rights-without-effective-remedies/

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part I http://www.dol.gov/ebsa/faqs/faq-aca.html

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part II http://www.dol.gov/ebsa/faqs/faq-aca2.html

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part III  http://www.dol.gov/ebsa/faqs/faq-aca3.html

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part IV http://www.dol.gov/ebsa/faqs/faq-aca4.html

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part I http://www.dol.gov/ebsa/faqs/faq-aca.html

DOL, Employee Benefits Security Administration, FAQs About the Affordable Care Act Implementation Part II http://www.dol.gov/ebsa/faqs/faq-aca2.html

DOL, Bureau of Labor Statistics, Employment Cost Index - September 2010, USDL-10-1480 (October, 29, 2010)  http://www.bls.gov/news.release/eci.nr0.htm

DOL, Bureau of Labor Statistics, Mass Layoffs (Monthly)  – September  2010 USDL-10-1452 (October 22, 2010) http://www.bls.gov/news.release/pdf/mmls.pdf

DOL, Bureau of Labor Statistics, Health insurance costs to employers and employees, 1999 to 2009 (November 1, 2010)  http://www.bls.gov/opub/ted/

Office of the NLRB General Counsel, Division of Operations-Management, Quality Committee’s Report on Selected FY 2009 Litigation Wins and Losses,  Memorandum OM 11-05 October 15, 2010  http://www.nlrb.gov/shared_files/OM%20Memo/2011/OM%2011-05%20Quality%20Committees%20Rpt%20on%20FY09%20Wins%20and%20Losses.pdf

Melissa Brown, Kerstin Aumann, Marcie Pitt-Catsouphes, Ellen Galinsky & James T. Bond, Working In Retirement: A 21st Century Phenomenon (Families and Work Institute & Sloan Center on Aging and Work) http://familiesandwork.org/site/research/reports/workinginretirement.pdf

NLRA 75th Anniversary Conference Papers http://www.law.gwu.edu/News/2010-2011Events/NLRB/Pages/Papers.aspx

U.S. Census Bureau, The 2010 Statistical Abstract The National Data Book http://www.census.gov/compendia/statab/cats/labor_force_employment_earnings.html

U.S. Census Bureau,  Employment Status of Married-Couple Families by Presence of Own Children Under 18 Years: 2008 and 2009 (Oct. 2010) http://www.census.gov/prod/2010pubs/acsbr09-10.pdf

Congressional Research Service, Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis, R40725 (September 1, 2010) http://www.nahu.org/legislative/resources/Requiring%20Individuals%20to%20Obtain.pdf

Congressional Budget Office, Cost Estimate: H.R. 5663 - Robert C. Byrd Miner Safety and Health Act of 2010 October 7, 2010 http://www.cbo.gov/ftpdocs/119xx/doc11937/HR5663.pdf

State of New Jersey, Office of the State Comptroller, New Jersey Turnpike Authority, Selected Financial and Operating Practices October 19, 2010 http://www.state.nj.us/comptroller/news/docs/nj_turnpike_audit_report_10_19_2010.pdfhttp://www.state.nj.us/comptroller/news/docs/nj_turnpike_audit_report_10_19_2010.pdf.

Government Accountability Office, Assessments and Citations of Federal Labor Law Violations by Selected Federal Contractors GAO-10-1033 September 2010  http://www.gao.gov/new.items/d101033.pdf

Government Accountability Office, Defense Contracting: Enhanced Training Could Strengthen DOD's Best Value Tradeoff Decisions  GAO-11-8, October 28, 2010 http://www.gao.gov/new.items/d118.pdf

Government Accountability Office, Defense Acquisition Workforce: DOD's Training Program Demonstrates Many Attributes of Effectiveness, but Improvement Is Needed   GAO-11-22, October 28, 2010 http://www.gao.gov/new.items/d1122.pdf

Government Accountability Office, Military Housing: Installations Need to Share Information on Their Section 801 On-Base Housing Contracts    GAO-11-60, October 28, 2010 http://www.gao.gov/new.items/d1160.pdf

Government Accountability Office, Information Security: National Archives and Records Administration Needs to Implement Key Program Elements and Controls    GAO-11-20, October 21, 2010 http://www.gao.gov/new.items/d1120.pdf

Government Accountability Office, Managing For Results: Opportunities to Strengthen Agencies' Customer Service Efforts  GAO-11-44, October 27, 2010 http://www.gao.gov/new.items/d1144.pdf

Government Accountability Office, Nursing Homes: Complexity of Private Investment Purchases Demonstrates Need for CMS to Improve the Usability and Completeness of Ownership Data  GAO-10-710, September 30, 2010

Government Accountability Office, Nursing Homes: Complexity of Private Investment Purchases Demonstrates Need for CMS to Improve the Usability and Completeness of Ownership Data   GAO-10-710, September 30, 2010 http://www.gao.gov/new.items/d10710.pdf

Government Accountability Office, Tax Debt Collection: IRS Could Improve Future Studies by Establishing Appropriate Guidance  GAO-10-963, September 24, 2010 http://www.gao.gov/new.items/d10963.pdf

Government Accountability Office, Food and Drug Administration: Overseas Offices Have Taken Steps to Help Ensure Import Safety, but More Long-Term Planning Is Needed   GAO-10-960, September 30, 2010 http://www.gao.gov/new.items/d10960.pdf

Government Accountability Office, Recovery Act: Department of Justice Could Better Assess Justice Assistance Grant Program Impact  GAO-11-87, October 15, 2010 http://www.gao.gov/new.items/d1187.pdf

Government Accountability Office, Secure Border Initiative: DHS Needs to Strengthen Management and Oversight of Its Prime Contractor   GAO-11-6, October 18, 2010 http://www.gao.gov/new.items/d116.pdf

Government Accountability Office, Privacy: OPM Should Better Monitor Implementation of Privacy-Related Policies and Procedures for Background Investigations GAO-10-849 September 7, 2010 http://www.gao.gov/new.items/d10849.pdf

Government Accountability Office, Federal Aviation Administration: Agency Is Taking Steps to Plan for and Train Its Technician Workforce, but a More Strategic Approach Is Warranted  GAO-11-91, October 22, 2010 http://www.gao.gov/new.items/d1191.pdf

Government Accountability Office, Servicemember Reemployment: Agencies Are Generally Timely in Processing Redress Complaints, but Improvements Needed in Maintaining Data and Reporting  GAO-11-55, October 22, 2010 http://www.gao.gov/new.items/d1155.pdf

Government Accountability Office, Participants in SBA's Microloan Program Could Provide Additional Information to Enhance the Public's Understanding of Recovery Act Fund Uses and Expected Outcomes  GAO-10-1032R, September 29, 2010 http://www.gao.gov/new.items/d101032r.pdf

Government Accountability Office, Tax Debt Collection: IRS Could Improve Future Studies by Establishing Appropriate Guidance (GAO-10-963) http://www.gao.gov/new.items/d10963.pdf.

Department of the Treasury & Council of Economic Advisers, An Economic Analysis of Infrastructure Investment, October 11, 2010 http://www.whitehouse.gov/sites/leraweb.org/files/infrastructure_investment_report.pdf

President Obama on Infrastructure Investment, October 11, 2010 http://www.whitehouse.gov/photos-and-video/video/2010/10/11/president-obama-infrastructure-investment

U.S. Treasury Department, Updated Estimates of Newly Hired Employees Eligible for the Hire Act Tax Exemption - Report Includes State-by-State Estimates of Eligible Hires October 8, 2010 http://www.treas.gov/offices/economic-policy/HIREAct-Report_update3_10_08_10_Final.pdf

EBRI Issue Brief  – The Impact of Auto-Enrollment and Automatic Contribution Escalation on Retirement Income Adequacy, November 2010 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4657

EBRI Issue Brief – Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2009, October 2010 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4663

EBRI Notes – The Impact of the COBRA Premium Subsidy on Coverage, October 2010 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4667

EBRI Notes – Retirement Savings Shortfalls for Today’s Workers, October 2010 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4667

State of New Jersey, Office of the State Comptroller, New Jersey Turnpike Authority, Selected Financial and Operating Practices, October 19, 2010 http://www.state.nj.us/comptroller/news/docs/nj_turnpike_audit_report_10_19_2010.pdf.

 

 

 

  • Recent Labor and Employment Law Articles

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    Andrew Smolik, Comment: The Effect of Shari'a on the Dispute Resolution Process Set Forth in the Washington Convention, 2010 J. Disp. Resol. 151

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    Brandon Stump, Note: From Reconstruction to Obama: Understanding Black Invisibility, Racism in Appalachia, and the Legal Community's Responsibility to Promote a Dialogue on Race at the WVU College of Law. 112 W. Va. L. Rev. 1095 (2010)

    Symposium. Redefining Work: Implications of the Four-day Work Week, 42 Conn. L. Rev. 1031 (2010)

    Symposium: Urban Development in the 21st Century, 24 Notre Dame J.L. Ethics & Pub. Pol'y 1 (2010)

    Symposium: Redefining Work: Implications of the Four-Day Work Week, 42 Conn. L. Rev.  1033 (2010)

    Symposium: The New Face of Discrimination: "Muslim" in America, 2 Duke F. for L. & Soc. Change 1 (2010)

    Symposium: In Honor of Clyde W. Summers, 14 Employee Rts. & Emp. Pol'y J. 1 (2010)

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    Symposium: International Labor Standards, 21 Stan. L. & Pol'y Rev. 399 (2010)

    Symposium: Creeping Legalism, 2010 J. Disp. Resol. 1

    Kari Tapiola & Lee Swepston, The ILO and the Impact of Labor Standards: Working on the Ground after an ILO Commission of Inquiry, 21 Stan. L. & Pol'y Rev. 513 (2010)

    Chantal Thomas, Undocumented Migrant Workers in a Fragmented International Order, 25 Md. J. Int'l L. 187 (2010)

    Randall Thomas, et alia, Arbitration Clauses in Ceo Employment Contracts: An Empirical and Theoretical Analysis, 63 Vand. L. Rev. 959 (2010)

    Michelle Travis, What a Difference a Day Makes, or Does It? Work / Family Balance and the Four-Day Work Week, 42 Conn. L. Rev. 1223 (2010)

    Lea Vandervelde, A Singular Conscience: In re Summers, Employee Rts. & Emp. Pol'y J. 153 (2010)

    Maya Warrier, Note: Dare to Step out of the Fogg: Single-Motive Versus Mixed-Motive Analysis in Title VII Employment Discrimination Cases, 47 U. Louisville L. Rev. 409 (2008)

    Jennifer Weinhold, Note: Beyond the Traditional Scope-of-employment Analysis in the Clergy Sexual Abuse Context, 47 U. Louisville L. Rev. 531 (2009)

    David Winters, Note: Third Circuit Buyers Beware: District Court in Litman Holds Unconscionability Defense Contravened by Federal Arbitration Act, 2010 J. Disp. Resol. 223

    Jane Yakowitz, Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam, 60 J. Legal Educ. 3 (2010)

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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

    The LERA LEL Section Newsletter, Labor and the Law, is available each month
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    It is edited by Ellen Dannin, Fannie Weiss Distinguished Faculty Scholar and Professor of Law, Penn State.
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