Labor and Employment Law News - October 2008

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2008

Labor and Employment Section Business - 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 Section meeting is January 3, 2009, 12:30 pm - 2:15 pm. The Secretary-Treasurer is Professor Heather Grob, Business Division, OM 371, St. Martin's University, 5300 Pacific Ave SE, Lacey, WA 98503.


Labor and Employment Law News

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


Union Organizing Liability for Accessing Employee Motor Vehicle Information
The Third Circuit Court of Appeals has now issued its decision in a case discussed two years ago in the LEL Newsletter: “Federal-Federal Statutory Conflicts Do Not Involve Preemption” (April 2006).
The appellate case has important consequences for union organizing. Liability could mean very large damages. Pichler v. UNITE-HERE, No.06-4522 (3d Cir. Sept. 9, 2008),

Briefly, after UNITE-HERE organizers used Cintas employee license numbers to retrieve contact information from state motor vehicle records to use in an organizing campaign, the union was sued for violating federal law under the Driver's Privacy Protection Act. The case is binding only on unions in the Third Circuit, but unions outside the Third Circuit who are concerned about liability may decide that the risk does not outweigh the value of the information for organizing campaigns. As a result, the Third Circuit case may, as a practical matter, be the final word on the issue, even though there was no trial, unless the DPPA is amended.
The core issue decided by the appellate court is whether the proper trial court process was followed in deciding whether exceptions to the DPPA meant the union's conduct did not violate the law. In this case, there was no trial. Judges may make decisions interpreting law without a trial, but they may only decide factual disputes through a trial. In this case, there was a potential factual dispute as to the union's motive in accessing the information. The union argued that its motive for accessing the information fell into two DPPA exceptions related to gathering the information for the purposes of enforcing a law and for litigation and was, therefore, legal. The trial court found, as a matter of law, that the union's motive for gathering the information could not affect the outcome and, thus, the union was liable. The majority of the appellate court affirmed.
The Court of Appeals majority decided that the union's actions violated the DPPA even if the union wanted to talk to Cintas employees to investigate and prosecute potential legal violations. In short, the majority found that even when the union had motives that were permitted by the DPPA, if it had any motive that was not covered by the DPPA's exceptions the union violated the law. The court found that gathering information as part of an organizing campaign was not included in any DPPA exception.

The majority also held that the trial court had been wrong to decide not to award punitive damages without a trial. The DPPA allows punitive damages when a defendant is found to have acted in willful or reckless disregard of the law. A trial is, therefore, necessary to determine the union's intent related to punitive damages.

The dissent took the position that the union's motives should have been decided at trial, because it was a factual matter. She explained that this was especially important since the case would control the circuit. The dissent and majority also discussed a case from the Eleventh Circuit case reached a different result in a case that involved attorneys who accessed information as part of an investigation for a class action case. Thomas v. George, Hartz, Lundeen, Fulmer, Johnstone, King, and Stevens, P.A., 525 F.3d 1107, 1115 n.5 (11th Cir. 2008)



Supervisory Status Under Oakwood Hospital Standards
There were many predictions that the National Labor Relations Board (NLRB) decision in Oakwood Healthcare, 348 NLRB 686 (2006) meant that “up to 8 million workers” would be classified as supervisors and thus lose coverage under the National Labor Relations Act. I am not aware of any post-decision studies on Oakwood's impact so far, but there have been cases that apply Oakwood and yet have found that the workers to be employees and protected by the NLRA. Decisions as to employee status are highly fact-specific and are not made based on mere labels or titles. Furthermore, the burden of proof is on the one who claims a worker is not an employee. A recent example is Barstow Community Hospital, 352 NLRB No.125 (Aug. 18, 2008).

The Board held in Barstow that the employer had failed to carry its burden of proving that a registered nurse who also worked as a relief clinical coordinator in the hospital's emergency room was a supervisor. Specifically, the employer failed to prove that the nurse had authority to responsibly direct employees in the emergency room and thus could not prove that the nurse had exercised independent judgment in making assignments to nurses. In the Board's words: “To establish possession of the authority responsibly to direct, the party bearing the burden of proof— here, the Respondent — must present evidence of â˜actual accountability.'” As a result, the employer was found to have violated the NLRA for suspending the nurse her union activities and interrogating her.

Another recent case found that the employer failed to prove that engineers were supervisors under Oakwood. As a result, the employer violated the NLRA when it refused to bargain about eliminating their positions and by withdrawing recognition of the Union.
GFC Crane Consultants, Inc., 352 NLRB No.142 (Aug. 29, 2008).

Breach of ERISA Fiduciary Responsibility by Paying Itself While Failing to Pay Employee Medical Costs
ERISA requires that those who have fiduciary responsibilities must exercise them with “an eye-single” to the rights of the plan's participants. A recent case involved a bankrupt employer who had switched to a self-insured plan from a fully-insured plan after the employer began to experience financial troubles in the 1990's and who employed an administrator to oversee the operation of the plan. When the employer filed for bankruptcy, it had more than $300,000 in unpaid medical bills and had stopped making payments to fund the plan. Despite these circumstance, the plan administrator retained its fee and made other financial decisions that harmed the plan participants. Briscoe v. Preferred Health Plan, Case No.3:02CV-264-S (W.D. Ky. Sept. 2, 2008).

The administrator's obligations under ERISA turned on whether it was a fiduciary. The court said “that mere possession or custody of plan assets was not enough. Fiduciary responsibility arose from the power of disposition of assets and the exercise of that power.” The court also said that one could be a fiduciary even without discretionary power over assets. By taking “an administrative fee for itself instead of using those funds to pay health insurance premiums or benefits” the administrator became liable for the wrongful disposition of those funds.



Work in Progress

Joseph Seiner, Assistant Professor of Law, University of South Carolina School of Law
In my forthcoming article, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. __ , I discuss the case of Bell Atlantic Corporation v. Twombly, 127 S. Ct. 1955 (2007). In that case, the Supreme Court announced a new standard for pleading claims in the context of a complex antitrust case. Under the new standard, a plaintiff must plead sufficient facts to state a plausible claim for relief. It is unclear what impact — if any — this decision will ultimately have on cases brought in the employment discrimination context. In this paper, I analyze motions to dismiss brought pursuant to Title VII of the Civil Rights Act of 1964 in the year before and the year after Twombly and find an increasing trend in the rate at which such claims are being dismissed. I then explore the rationales courts use in rejecting these claims. Finally, I propose a unified pleading framework for all Title VII claims, explain how this proposed model would comply with Twombly's plausibility standard, and discuss how this proposal would fit within the recent academic debate on this issue.


Web Links

Human Rights Campaign Foundation, Corporate Equality Index 2009

Treasury Inspector General for Tax Administration, The Internal Revenue Service and Contractors Are Generally Following Procedures Established for the Private Debt Collection Program, but Improvements are Needed (No. 2008-30-157)

American Constitution Society, New Data Unveiled: How the Federal Courts Are Treating Employment Discrimination Plaintiffs

Government Accountability Project, Running the Gauntlet: The Campaign for Credible Corporate Whistleblower Rights press release PDF File

Ann Tynan, Allison Liebhaber, Paul B. Ginsburg, A Health Plan Work in Progress: Hospital-Physician Price and Quality Transparency, Center for Studying Health System Change (HSC) Research Brief No. 7 August 2008

U. S. Equal Employment Opportunity Commission, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities

Friends of the Earth (Australia) Nanotechnology Project, Mounting Evidence that Carbon Nanotubes May be the New Asbestos

Robert Pollin, Heidi Garrett-Peltier, James Heintz, and Helen Scharber Green Recovery: A Program to Create Good Jobs and Start Building a Low-Carbon Economy ((Political Economy Research Institute) (2008)

Jack Hadley, John Holahan, Teresa Coughlin, and Dawn Miller, Covering The Uninsured In 2008: Current Costs, Sources Of Payment, And Incremental Costs, 27 Health Affairs (no.5) 399 (2008)



Recent Labor and Employment Law Articles
Note: Many law review articles are now accessible free via either SSRN or BePress, as well as from Lexis and WestLaw. A simple internet search that includes either SSRN or BePress and the author's name is probably the simplest way to locate the article.

David Adamson, Note: The Discharge of Sexual Harassment Judgments in Bankruptcy Court: An Attempt to Right a "Grave Injustice", 25 Hofstra Lab. & Emp. L.J. 283 (2007)

Joseph Aldridge, Note: Pay-Setting Decisions as Discrete Acts: The Court Sharpens its Focus on Intent in Title VII Actions, 86 Neb. L. Rev. 955 (2008)

Michelle Anderson, Cities Inside Out: Race, Poverty, and Exclusion at the Urban Fringe, 55 UCLA L. Rev. 1095 (2008)

Jayne Barnard, Post-tenure Review as If it Mattered, 17 J. Contemp. Legal Issues 297 (2008)

Claire Been, Comment: Bypassing Redundancy: Resolving the Jurisdictional Dilemma under the Defense Base Act, 83 Wash. L. Rev. 219 (2008)

Michael Bell, Note: A Cut at Rescission: Constitutional Infirmities in Orange County's 3% at 50 Retirement Benefits, 35 W. St. U. L. Rev. 381 (2008)

Maureen Binetti, Romance in the Workplace: When "Love" Becomes Litigation, 25 Hofstra Lab. & Emp. L.J. 153 (2007)

Ruben Bolivar Pagan, Note: Defending the "Acceptable Business Reason" Requirement of the Equal Pay Act, 33 J. Corp. L. 1007 (2008)

Zachary Bookman, Convergences and Omissions in Reporting Corporate and White Collar Crime, 6 Depaul Bus. & Com. L.J. 347 (2008)

John Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem-Solving Courts, 17 Widener L.J. 97 (2007)

Deborah Brake, What Counts as "Discrimination" in Ledbetter and the Implications for Sex Equality Law, 59 S.C. L. Rev. 657 (2008)

Carly Brandenburg, Note: The Newest Way to Screen Job Applicants: A Social Networker's Nightmare, 60 Fed. Comm. L.J. 597 (2008)

Trent Bridges, Note: Federal Prosecutors Twisting the Arm of Corporate America While its Employees Cry Uncle (Sam), 43 Tulsa L. Rev. 739 (2008)

Thomas Brierton & Peter Bowal, The Creative Necessity Defense, Free Speech, and California Sexual Harassment Law, 25 Hofstra Lab. & Emp. L.J. 63 (2007)

John Bunker, An Offer They Can't Refuse: Crafting an Employer's Immigration Compliance Program, 25 Hofstra Lab. & Emp. L.J. 199 (2007)

Katherine Burkhart, Note: Layering Administrative Law and Basic Contract Principles: Analyzing the Waiver of FMLA Claims in Severance Agreements, 33 J. Corp. L. 983 (2008)

Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, 25 Hofstra Lab. & Emp. L.J. 1 (2007)

Mark Carter & Shawn Burton, The Criminal Element of Neutrality Agreements, 25 Hofstra Lab. & Emp. L.J. 173 (2007)

David Cohen, Justice Kennedy's Gendered World, 59 S.C. L. Rev. 673 (2008)

Adam Cole, Note: You Say You Want a Revolution: Argentina's Recovered Factory Movement, 30 Hastings Int'l & Comp. L. Rev. 211 (2007)

Frank Cross, Thomas Smith & Antonio Tomarchio, The Reagan Revolution in the Network of Law, 57 Emory L.J. 1227 (2008)

Ellen Dannin & Gangaram Singh, More than Just a Cool T-Shirt: What We Don't Know about Collective Bargaining — But Should — To Make Organizing Effective, 25 Hofstra Lab. & Emp. L.J. 93 (2007)

Joel Dillard & Jennifer Dillard, Fetishizing the Electoral Process: The National Labor Relations Board's Problematic Embrace of Electoral Formalism, 6 Seattle J. for Soc. Just. 819 (2008)

Christopher Drahozal, Busting Arbitration Myths, 56 U. Kan. L. Rev. 663 (2008)

David Dunbar, Clark Monroe & and Benny May, Who's the Boss? Addressing the Increasing Controversies Associated with the Owner-Operator/Employee Dichotomy, 35 Transp. L.J. 203 (2008)

Robert Dur & Amihai Glazer, Optimal Contracts When a Worker Envies His Boss, 24 J.L. Econ. & Org. 120 (2008)

Jennifer Dyer, Note: The Failure of France's First Employment Contract: Failing to Protect Jobs and Workers, 17 Transnat'l L. & Contemp. Probs. 503 (2008)

Naomi Earp, Forty-three and Counting: Eeoc's Challenges and Successes and Emerging Trends in the Employment Arena, 25 Hofstra Lab. & Emp. L.J. 133 (2007)

Christine Elzer, Note: The "Official Duties" Puzzle: Lower Courts' Struggle with First Amendment Protection for Public Employees, 69 U. Pitt. L. Rev. 367 (2007)

Amanda Eno, Comment: The Misconception of "Sex" in Title VII: Federal Courts Reevaluate Transsexual Employment Discrimination Claims, 43 Tulsa L. Rev. 765 (2008)

Cynthia Estlund, Solidarity and Betrayal in the North Woods, 25 Hofstra Lab. & Emp. L.J. 223 (2007)

Kara Farina, Comment: When Does Discrimination "Occur"? The Supreme Court's Limitation on an Employee's Ability to Challenge Discriminatory Pay under Title VII, 38 Golden Gate U. L. Rev. 249 (2008)

Gregory Feary, Independent Contractor Employment Classification: A Survey of State and Federal Laws in the Motor Carrier Industry, 35 Transp. L.J. 139 (2008)

Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale J.L. & Feminism 1 (2008)

William Forbath, The Politics of Race, Rights, and Needs — And the Perils of a Democratic Victory in Post-Welfare America: Some Reflections on the Work of Felicia Kornbluh, 20 Yale J.L. & Feminism 195 (2008)

Brian Flanagan, The Effect of Minority Preferences on the White Applicant: A Misplaced Consensus? 34 Ohio N.U. L. Rev. 445 (2008)

Michael Gibek & Joshua Shteierman, Note: The "No-match" Letter Rule: A Mismatch Between the Department of Homeland Security and Social Security Administration in Worksite Immigration Law Enforcement, 25 Hofstra Lab. & Emp. L.J. 233 (2007)

Clayton Gillette, Law School Faculty as Free Agents, 17 J. Contemp. Legal Issues 213 (2008)

Roger Goebel, Economic Governance in the European Union: Should Fiscal Stability Outweigh Economic Growth in the Stability and Growth Pact? 31 Fordham Int'l L.J. 1266 (2008)

Hannah Gordon, Note: The Robinson Rule: Models for Addressing Race Discrimination in the Hiring of NCAA Head Football Coaches, 15 Sports Law. J. 1 (2008)

Jennifer Gordon & R. A. Lenhardt, Rethinking Work and Citizenship, 55 UCLA L. Rev. 1161 (2008)

Douglas Grawe, Have Truck, Will Drive: The Trucking Industry and the Use of Independent Owner-Operators over Time, 35 Transp. L.J. 115 (2008)

Charles Greene, Determining Liability in Asbestos Cases: The Battle to Assign Liability Decades after Exposure, 31 Am. J. Trial Advoc. 571 (2008)

Andrew Hanson, Note: The Trend Toward Principled Negotiation in Major League Baseball Collective Bargaining, 15 Sports Law. J. 221 (2008)

Sheila Hatami & David Zwerin, Note: Educating the Masses: Expanding Title VII to Include Sexual Orientation in the Education Arena, 25 Hofstra Lab. & Emp. L.J. 311 (2007)

Elizabeth Hirsh, Settling for Less? Organizational Determinants of Discrimination-charge Outcomes, 42 Law & Soc'y Rev. 239 (2008)

Moshe Hirsch, The Sociology of International Economic Law: Sociological Analysis of the Regulation of Regional Agreements in the World Trading System, 19 Eur. J. Int'l L. 277 (2008)

Grace Ho, Not Quite Rights: How the Unwelcomeness Element in Sexual Harassment Law Undermines Title VII's Transformative Potential, 20 Yale J.L. & Feminism 131 (2008)

Ben Ikuta, Note: Why Binomial Distributions Do Not Work as Proof of Employment Discrimination, 59 Hastings L.J. 1235 (2008)

Nicole Karlebach, Recognizing Women's Worth: The Human Rights Argument for Ending Prostitution in India, a review of Geetanjali Gangoli, Indian Feminisms: Law, Patriarchies and Violence in India, 28 B.C. Third World L.J. 483 (2008)

Jeffrey Kahana, Imperium in Imperio and the Political Origins of the American Labor Conspiracy Doctrine, 30 Law & Pol'y 364 (2008)

Charles, Koch, Administrative Judges' Role in Developing Social Policy, 68 La. L. Rev. 1095 (2008)

Felicia Kornbluh, Redistribution, Recognition, and Good China: Administrative Justice for Women Welfare Recipients Before Goldberg v. Kelly, 20 Yale J.L. & Feminism 165 (2008)

Kevin Lashus, Robert Loughran & Magali Candler, Fear the Ice Man: Lessons from the Swift Raids to Warm You Up — The New Government Perspective on Employer Sanctions, 32 Nova L. Rev. 391 (2008)

Lucas Lavoy, Recent Development. Erisa Section 404(c) in the Fifth Circuit, 82 Tul. L. Rev. 2495 (2008)

Robert Lockwood, Note: The Best Interests of the League: Referee Betting Scandal Brings Commissioner Authority and Collective Bargaining Back to the Frontcourt in the NBA, 15 Sports Law. J. 137 (2008)

Thomas Lubnau & Daniel Bailey, Dealing with the Disruptive Physician, 8 Wyoming L. Rev. 567 (2008)

Irfan Murtuza, Note: National Standards and Nclb: The Promise of State Compacts, 15 Geo. J. on Poverty L. & Pol'y 129 (2008)

Michael Nava, The Servant of All: Humility, Humanity, and Judicial Diversity, 38 Golden Gate U. L. Rev. 175 (2008)

Winston Naga & Craig Hammer, The Rise of Outsourcing in Modern Warfare: Sovereign Power, Private Military Actors, and the Constitutive Process, 60 Me. L. Rev. 429 (2008)

Catherine Odom, Comment: Merit or Mandatory Preference?: The Effect of Huber v. Wal-Mart Stores, Inc. on the Application of the ADA's Reassignment Provision, 61 Ark. L. Rev. 389 (2008)

Joseph Oluwole, The Pickering Balancing Test and Public Employment-Free Speech Jurisprudence: The Approaches of Federal Circuit Courts of Appeals, 46 Duq. L. Rev. 133 (2008)

Kristin Parker, Comment: Ambient Harassment under Title VII: Reconsidering the Workplace Environment, 102 Nw. U. L. Rev. 945 (2008)

Thomas Riske, Note: Interest Arbitration Clauses in Section 8(f) Pre-Hire Agreements: Effective for Achieving Genuine Collective Bargaining or Enabling Parties to Underhandedly Gain Majority Bargaining Power? 2008 J. Disp. Resol. 333

William Roberts, Comment: An Irish Lesson for Empowering America's Part-time Work Force: ERISA and the Protection of Employees (Part-time Work) Act, 2001, 25 Wis. Int'l L.J. 563 (2007)

Florian Rodl, Private Law Beyond the Democratic Order? On the Legitimatory Problem of Private Law "Beyond the State", 56 Am. J. Comp. L. 743 (2008)

Benjamin Sachs, Employment Law as Labor Law, 29 Cardozo L. Rev. 2685 (2008)

Nina Schichor, Does Sarbanes-Oxley Force Whistleblowers to Sacrifice Their Reputations? An Argument for Granting Whistleblowers Non-Pecuniary Damages, 8 UC Davis Bus. L.J. 272 (2008)

Anja Schottner, Relational Contracts, Multitasking, and Job Design, 24 J.L. Econ. & Org. 138 (2008)

Dru Stevenson, Privatization of State Administrative Services, 68 La. L. Rev. 1285 (2008)

Kerri Stone, Consenting Adults? Why Women Who Submit to Supervisory Sexual Harassment Are Faring Better in Court than Those Who Say No...and Why They Shouldn't, 20 Yale J.L. & Feminism 25 (2008)

Symposium: Beyond the State: Rethinking Private Law, 56 Am. J. Comp. L. 527 (2008)

Symposium: A Practical Guide to Alternative Dispute Resolution in North Carolina, 30 Campbell L. Rev. 237 (2008)

Symposium: Issues Surrounding the "Owner-Operator" and "Employee" Classifications in Motor Carrier and Transportation Laws, 35 Transp. L.J. 115 (2008)

Symposium: Innovative Models of Lawyering: Collaborative Law and Other Processes, 2008 J. Disp. Resol. 1

Symposium: Self and Other: Cognitive Perspectives on Trust, Empathy and the Self, 9 Minn. J. L. Sci. & Tech. 637 (2008)

Symposium: Access to Justice: The Social Responsibility of Lawyers, 25 Wash. U. J.L. & Pol'y 1 (2007)

Ann Marie Tracey & Norma Skoog, Is Business Judgment a Catch-22 for ADEA Plaintiffs? The Impact of Smith v. City of Jackson on Future Adea Employment Litigation, 33 U. Dayton L. Rev. 231 (2008)

Lindsey Thomas, Note: Getting on the Right Track, 27 Miss. C.l. Rev. 477 (2007-2008)

David M. Uhlmann, Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act (September 2008)

John Watts, Differences Without Distinctions: Boyle's Government Contractor Defense Fails to Recognize the Critical Differences Between Civilian and Military Plaintiffs and Between Military and Non-Military Procurement, 60 Okla. L. Rev. 647 (2007)

David Weiss, Note: How Terrell Owens, Collective Bargaining, and Forfeiture Restrictions Created a Moral Hazard That Caused the NFL Crime Wave and What it Meant for Michael Vick, 15 Sports Law. J. 279 (2008)

Nancy Welsh, Looking Down the Road Less Travelled: Challenges to Persuading the Legal Profession to Define Problems More Humanistically, 2008 J. Disp. Resol. 45

James Williams, Out of Place and out of Line: Positioning the Police in the Regulation of Financial Markets, 30 Law & Pol'y 306 (2008)

David Wirtes & Donald McKenna, Taking Control: How a False Claims Act Will Allow Alabama to Stop the Leeching of its Treasury, 31 Am. J. Trial Advoc. 545 (2008)

Peer Zumbansen, Law after the Welfare State: Formalism, Functionalism, and the Ironic Turn of Reflexive Law, 56 Am. J. Comp. L. 769 (2008)




Future Newsletters

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
311 Beam Building
University Park, PA 16802-1912

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