Labor and Employment Law News - October 2011

Labor and the Law: Current News and Information
from the LERA Section on Labor and Employment Law
(LEL) © 2011
Published since 1997

October 2011
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.

Bargaining, Impasse, Right to Information, and Lockout Under the National Labor Relations Act

            A recent NLRB case includes a vigorous decision and strong dissent concerning key issues likely to arise in a bargaining relationship gone sour. Briefly, the employer refused to provide the union information it requested that was relevant to the employers financial situation.  In addition, the employer locked out its employees and then hired replacement workers and canceled its employees’ health insurance coverage, including their COBRA rights. The majority found that these acts violated the NLRA.  The decision and dissent provide a good overview of legal issues that commonly arise in bargaining and the range of arguments that are commonly seen in negotiations that lead to hearings at the NLRB. KLB Industries Inc. d/b/a National Extrusion & Manufacturing Company, 357 NLRB Case No.8 (July 26, 2011) http://mynlrb.nlrb.gov/link/document.aspx/09031d45805217f3

            In general, parties have an obligation to provide information requested by the other party that is relevant to the issues being bargained. This duty includes information requested to assess the validity of claims made during negotiations. The obligation is a discovery-like standard of relevance.  This obligation includes claims concerning an inability to pay wages. The dissent argued that there was a critical difference in this case between a claim of inability to pay versus, as was the situation here, where the claim was “competitive disadvantage.”

Arbitration of State Wage Claims for Misclassification of Employees as Independent Contractors

            This case brings together legal issues that are among the most hotly contested in the labor and employment law area. They include being required to arbitrate workplace claims, rather than take those claims to court; wage payment problems based on the improper classification of employees as nonemployees; and the procedure used to decide disputes of this sort.

            Briefly, the Federal Arbitration Act exempts transportation workers from the FAA’s coverage, but the court found that the decision as to whether the FAA exempted the drivers and all decisions that flowed from that decision must be made by an arbitrator, rather than a court.  That decision would seem to allow an arbitrator to bootstrap herself into having the power to decide a case. Much hangs on that initial decision. If the arbitrator found that the drivers were not exempted from the FAA’s exemption of transportation workers from its coverage, the drivers would not be allowed to present the case as a class action because their arbitration agreement waived that right.

            The case also includes an interesting discussion on the standard of review of the district court’s decision to dismiss the drivers’ case and send it to arbitration. By dismissing the case, it was possible that the statute of limitations might have run while the case was appealed, and the drivers would not be allowed to refile their case.  The majority of appellate judges decided that the arbitrator’s decision should be reviewed by the court on an abuse of discretion standard. That standard of review means that the decision will almost never be overturned. In this case, the court of appeals majority held that the “district court abused its discretion in dismissing the action, rather than staying it pending completion of the arbitration.” The concurring judge said, “I believe section 3 affords the district court no discretion to dismiss a case even “where it is clear the entire controversy between the parties will be resolved by arbitration.”

The Employee Polygraph Protection Act, Defamation, and Privacy Rights

            One of the less well known laws that controls the workplace is the Employee Polygraph Protection Act. Its application extends beyond whether and how an employee is made to take a polygraph test. In addition, an alleged violation of the EPPA can also be a violation of other laws, including right to privacy, defamation, and intentional infliction of emotional distress. The EPPA not only limits the situations in which a polygraph test can be used, but also has strict requirements for how the test may be administered.  A recent decision provides a good overview of the law in this area. Miller v. Natural Resources Recovery, Case No.10–537 ( M.D. LA Aug. 29, 2011)

When Can Volunteers be Employees?

            Deciding whether a person is an employee is both an easy and a difficult question to answer. Some people assume (incorrectly) that employers can decide whether someone is an employee by categorizing the person as an employee or an independent contractor.  Others may assume (incorrectly) that someone who is not on the payroll they are not an employee. The law is clear that labels do not affect employee status, and not receiving pay may be a legal violation.

            A recent sex discrimination case involving a volunteer fire department provides a good example of the problem of defining who is an employee. Title VII jurisdiction depends on the number of employees who work for an employer. In this case, even though the volunteer fire fighters had been classified as “members”, the EEOC and its state correlate agencies found that the Fire Department “was an employer for purposes of Title VII because its firefighter-members were employees”.  In addition, it found that the Fire Department had exercised sufficient control over the fire fighters, including paying compensation for their services that the fire fighters were employees.  Bryson v. Middlefield Volunteer Fire Department, Case No.10-3055 (6th Cir. Sept. 2, 2011). http://www.ca6.uscourts.gov/opinions.pdf/11a0255p-06.pdf

            On appeal, the Court of Appeals, cited to the Supreme Court’s multi-factor test: “‘In determining whether a hired party is an employee . . . we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” The court, though, asked whether the status of a volunteer would be controlled by the same test or whether “significant-remuneration” was required. The court concluded that pay could be included as a factor in the analysis but that lack of pay did not demonstrate that employee status did not exist. The court noted that employment relationships take many forms and gave examples of how the relationship can arise in many different scenarios.

            The dissent argued that significant remuneration is required and that the jury must decide whether significant remuneration exists.

NLRB Successorship and Successor-Bar Rules

            The NLRB has created various “bar” doctrines which bar a new election for a specific period of time.  The NLRB recently overruled the successor-bar rule of MV Transportation (2002) in UGL-UNICCO Service Co., 357 NLRB No.76 (Aug. 26, 2011) http://mynlrb.nlrb.gov/link/document.aspx/09031d4580611027  and Lamons Gasket, 357 NLRB No.72 (2011), http://mynlrb.nlrb.gov/link/document.aspx/09031d458060afd7  The majority decision described the importance of giving a bargaining relationship “‘a reasonable period in which it can be given a fair chance to succeed.’” The purpose of the bar doctrines in these cases is to “promote a primary goal of the National Labor Relations Act by stabilizing labor-management relationships and so promoting collective bargaining, without interfering with the freedom of employees to periodically select a new representative or reject representation.” Member Hayes dissented.

No Obligation to Arbitrate Violations of the Americans with Disabilities Act

            A recent 6th Circuit of Appeals case found no obligation to arbitrate a claim that the employee had been fired in violation of the Americans with Disabilities Act. The employee, a nurse at a retirement home, was diagnosed with cancer shortly after she was hired. Two months later, when she sought to return to work, she was told that she had been fired with rehire status. When the employee sued, her employer filed a motion to compel arbitration of the claim. Hergenreder v. Bickford Senior Living Group, LLC, Case No.10-1474 (6th Cir. Aug. 30, 2011) http://www.michbar.org/opinions/us_appeals/2011/083011/49631.pdf

            The facts of this case are fairly typical of the hiring process in many workplaces. The employee was given a number of documents, some of which required her signature. The materials stated that they did not create a contract. The exception to this was the employer’s arbitration procedure. Its position was that, while a signed agreement was not necessary to require arbitration, it asked employees to sign a document agreeing to arbitrate all workplace claims. However, the employer did not produce any document signed by the plaintiff.

The court points out that the Federal Arbitration Act (FAA) guarantees the enforcement of private contracts to arbitrate disputes. Courts are obligated to engage in a review of the agreement to decide whether there is a valid agreement to arbitrate the specific dispute. The court reviewed Michigan contract law.  Michigan law requires evidence that the party claiming a contract exists produce evidence that the parties intended to be bound by the contract. The court’s review of the evidence led it to conclude that there was no evidence that a contract had been created. It also found that the employee had not knowingly and voluntarily waived her right to jury trial.

Web Links

U.S. Equal Employment Opportunity Commission (EEOC), EEOC and Cracker Barrel Sign National Mediation Agreement, 9-27-11 http://www.eeoc.gov/eeoc/newsroom/release/9-27-11.cfm

US Census Bureau, Income, Poverty and Health Insurance Coverage in the United States: 2010 September 13, 2011 http://www.census.gov/newsroom/releases/archives/income_wealth/cb11-157.html

US Census Bureau, Ingreso, pobreza y cobertura de seguro médico en los Estados Unidos: 2010 September 13, 2011 http://www.census.gov/newsroom/releases/archives/income_wealth/cb11-157sp.html

U.S. Department of Transportation, Gulf Coast Study, Phase 2, September 1, 2011, Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: The Gulf Coast Study, Phase 2. Task 1: Assessing Infrastructure for Critically in Mobile, AL http://www.fhwa.dot.gov/hep/climate/gulf_coast_study/phase_2/index.cfm

http://www.fhwa.dot.gov/hep/climate/gulf_coast_study/phase_2/gulfcoast2.pdf

Federal Highway Administration's (FHWA) Surface Transportation Environment and Planning Cooperative Research Program (STEP), Impacts of Climate Change and Variability on Transportation Systems and Infrastructure: Gulf Coast Study, Phase I. January 2010

NLRB Poster on Employee Rights Under the National Labor Relations Act http://www.nlrb.gov/sites/leraweb.org/files/documents/1562/employee_rights_nlra.pdf

NLRB Fact Sheet on Posting Obligations of Employee Rights Under the National Labor Relations Act http://www.nlrb.gov/news-media/fact-sheets/final-rule-notification-employee-rights

Project on Government Oversight, Bad Business: Billions of Taxpayer Dollars Wasted on Hiring Contractors http://www.pogo.org/pogo-files/reports/contract-oversight/bad-business/co-gp-20110913.html

http://pogoarchives.org/m/co/igf/bad-business-report-only-2011.pdf

Senate Budget Committee, Promoting Job Creation in the U.S., Sept. 20, 2011 http://budget.senate.gov/democratic/index.cfm/committeehearings?ContentRecord_id=64d81259-55d4-4208-a404-9dbf4318e5f1&ContentType_id=14f995b9-dfa5-407a-9d35-56cc7152a7ed&Group_id=d68d31c2-2e75-49fb-a03a-be915cb4550b

US Department of Labor's OSHA issues updated Whistleblower Investigations Manual September 21, 2011 http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20712 - Manual may be found at  http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-03-003.pdf

OSHA, Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents, Directive Number: CPL 02-01-052  September 8, 2011 http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-052.pdf - http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20637

OSHA, US Department of Labor finds Bank of America in violation of Sarbanes-Oxley Act whistleblower protection provisions [9/14/11] http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=20667

OSHA, Directorate of Enforcement Programs, The Whistleblower Protection Program http://www.whistleblowers.gov/

EBRI Notes – October 2011, Ownership of Individual Retirement Accounts (IRAs) and 401(k)-Type Plans, 1996-2009,” and “Tracking Health Insurance Coverage by Month: Trends in Employment-Based Coverage Among Workers, and Access to Coverage Among Uninsured Workers, 1995-2010 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4913

EBRI Issue Brief – October 2011, Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2010 http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4911

EBRI Issue Brief – September 2011 Sources of Health Insurance and Characteristics of the Uninsured: Analysis of the March 2011 Current Population Survey http://www.ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4896

EBRI, 2011 Health Confidence Survey: Most Americans Unfamiliar With Key Aspect of Health Reform; Is There a Future for Retirement?; New Publications and Internet Sites September 2011 http://www.ebri.org/pdf/notespdf/EBRI_Notes_09_Sept-11.HCS_PolFor.pdf

EBRI Notes –Is There a Future for Retirement?  September 2011 http://www.ebri.org/publications/notes/index.cfm?fa=notesDisp&content_id=4879

EBRI Testimony: Proposed Tax Changes to Retirement Savings Would Have Big Impact on Workers http://www.ebri.org/pdf/PR938.15Sept11.SenFinTestimony.pdf

EBRI Notes – August 2011, The Impact of Repealing PPACA on Savings Needed for Health "Expenses for Persons Eligible for Medicare  http://www.ebri.org/pdf/PR934.29 Aug11.PPACA.pdf

EBRI Notes – August 2011, The Importance of Defined Benefit Plans for Retirement Income Adequacy http://www.ebri.org/pdf/PR936.31Aug11.DBPlans.pdf

EBRI Issue Brief – August 2011, Target-Date Fund Use in 401(k) Plans and the Persistence of Their Use, 2007-2009 http://ebri.org/publications/ib/index.cfm?fa=ibDisp&content_id=4871

America Insomnia Survey (AIS) http://www.hcp.med.harvard.edu/wmh/AIS_Study.php

Cliff Zukin, Carl Van Horn, and Charley Stone, Out of Work and Losing Hope: The Misery and Bleak Expectations of American Workers (Rutgers University, Heldrich Center for Workforce Development), September 2011 http://www.heldrich.rutgers.edu/sites/leraweb.org/files/content/Work_Trends_September_2011.pdf

Jessica Godofsky, Cliff Zukin, Carl Van Horn, Unfulfilled Expectations: Recent College Graduates Struggle in a Troubled Economy, (Kessler Foundation and Heldrich Center) May 2011 http://www.heldrich.rutgers.edu/sites/leraweb.org/files/content/Work_Trends_May_2011.pdf

NLRB Chairman Pearce issues statement on Congressional hearing about Board actions September 22, 2011 http://www.nlrb.gov/news/nlrb-chairman-pearce-issues-statement-congressional-hearing-about-board-actions

NLRB Poster on Employee Rights now available for download September 14, 2011 http://www.nlrb.gov/news/nlrb-poster-employee-rights-now-available-download

NLRB obtains injunction to stop violent union protests at port of Longview, Washington September 9, 2011 http://www.nlrb.gov/news/nlrb-obtains-injunction-stop-violent-union-protests-port-longview-washington

National Labor Relations Board 10(j) Injunction Activity https://mynlrb.nlrb.gov/portal/nlrb.pt?open=512&objID=220&mode=2

Government Accountability Office, Health Care Price Transparency: Meaningful Price Information Is Difficult for Consumers to Obtain Prior to Receiving Care GAO-11-791 September 23, 2011 http://gao.gov/products/GAO-11-791

Government Accountability Office, Potential Financial Effect on the U.S. Postal Service of Increased Voting by Mail  GAO-12-72R, Oct 20, 2011 http://www.gao.gov/new.items/d1272R.pdf

Government Accountability Office, U.S. Postal Service: Mail Trends Highlight Need to Fundamentally Change Business Model    GAO-12-159SP, Oct 14, 2011 http://www.gao.gov/new.items/d12159sp.pdf

Government Accountability Office, Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts   GAO-11-819, Sep 23, 2011 http://www.gao.gov/new.items/d11819.pdf

Government Accountability Office, Income Security: Older Adults and the 2007-2009 Recession   GAO-12-76, Oct 17, 2011 http://www.gao.gov/new.items/d1276.pdf

Government Accountability Office, Income Security: The Effect of the 2007-2009 Recession on Older Adults   GAO-12-172T, Oct 18, 2011  http://www.gao.gov/new.items/d12172T.pdf

Government Accountability Office, Prior Experience and Past Performance as Evaluation Criteria in the Award of Federal Construction Contracts   GAO-12-102R, Oct 18, 2011 http://www.gao.gov/new.items/d12102R.pdf

Government Accountability Office, U.S. Postal Service: Allocation of Responsibility for Pension Benefits between the Postal Service and the Federal Government   GAO-12-146, Oct 13, 2011 http://www.gao.gov/new.items/d12146.pdf

Government Accountability Office, Highway Trust Fund: All States Received More Funding Than They Contributed in Highway Taxes from 2005 to 2009   GAO-11-918, Sep 8, 2011 http://www.gao.gov/new.items/d11918.pdf

Government Accountability Office, On-the-Job Training: Federal Highway Administration Needs to Strengthen Program Assessment    GAO-11-703, Sep 7, 2011 http://www.gao.gov/new.items/d11703.pdf

Government Accountability Office, Information Security: Additional Guidance Needed to Address Cloud Computing Concerns    GAO-12-130T, Oct 6, 2011 http://www.gao.gov/new.items/d12130t.pdf

Government Accountability Office, Medicare Part D: Instances of Questionable Access to Prescription Drugs   GAO-12-104T, Oct 4, 2011 http://www.gao.gov/new.items/d12104t.pdf

Government Accountability Office, Medicare Part D: Instances of Questionable Access to Prescription Drugs   GAO-11-699, Sep 6, 2011 http://www.gao.gov/new.items/d11699.pdf

Government Accountability Office, Streamlining Government: Key Practices from Select Efficiency Initiatives Should Be Shared Governmentwide  GAO-11-908, Sep 30, 2011 http://www.gao.gov/new.items/d11908.pdf

Government Accountability Office, Veterans Disability Benefits: Clearer Information for Veterans and Additional Performance Measures Could Improve Appeal Process  GAO-11-812, Sep 29, 2011 http://www.gao.gov/new.items/d11812.pdf

Government Accountability Office, Social Security Disability: Participation in the Ticket to Work Program Has Increased, but More Oversight Needed    GAO-11-828T, Sep 23, 2011 http://www.gao.gov/new.items/d11828t.pdf

Government Accountability Office, Recovery Act Education Programs: Funding Retained Teachers, but Education Could More Consistently Communicate Stabilization Monitoring Issues   GAO-11-804, Sep 22, 2011 http://www.gao.gov/new.items/d11804.pdf

Government Accountability Office, Recovery Act Education Programs: Survey of School Districts' Uses of Funds (GAO-11-885SP, September 2011), an E-supplement to GAO-11-804    GAO-11-885SP, Sep 22, 2011 http://www.gao.gov/special.pubs/gao-11-885sp/index.htm

Government Accountability Office, Military Training: Actions Needed to Assess Workforce Requirements and Appropriate Mix of Army Training Personnel    GAO-11-845, Sep 20, 2011 http://www.gao.gov/new.items/d11845.pdf

Government Accountability Office, Personal ID Verification: Agencies Should Set a Higher Priority on Using the Capabilities of Standardized Identification Cards   GAO-11-751, Sep 20, 2011 http://www.gao.gov/new.items/d11751.pdf

Government Accountability Office, Telecommunications: Competition, Capacity, and Costs in the Fixed Satellite Services Industry  GAO-11-777, Sep 7, 2011 http://www.gao.gov/new.items/d11777.pdf

Government Accountability Office, Chesapeake Bay: Restoration Effort Needs Common Federal and State Goals and Assessment Approach   GAO-11-802, Sep 15, 2011 http://www.gao.gov/new.items/d11802.pdf

Government Accountability Office, Disaster Recovery: Federal Contracting in the Aftermath of Hurricanes Katrina and Rita   GAO-11-942T, Sep 15, 2011 http://www.gao.gov/new.items/d11942t.pdf

Government Accountability Office, Small Business Contracting: Opportunities to Improve the Effectiveness of Agency and SBA Advocates and Mentor-Protege Programs   GAO-11-844T, Sep 15, 2011 http://www.gao.gov/new.items/d11844t.pdf

Government Accountability Office, Small Business Innovation Research: SBA Should Work with Agencies to Improve the Data Available for Program Evaluation   GAO-11-698, Aug 15, 2011 http://www.gao.gov/new.items/d11698.pdf

Government Accountability Office, Child Care: Overview of Relevant Employment Laws and Cases of Sex Offenders at Child Care Facilities   GAO-11-757, Aug 19, 2011 http://www.gao.gov/new.items/d11757.pdf

Government Accountability Office, Tax Whistleblowers: Incomplete Data Hinders IRS's Ability to Manage Claim Processing Time and Enhance External Communication  GAO-11-683, Aug 10, 2011 http://www.gao.gov/new.items/d11683.pdf

Government Accountability Office, Temporary Assistance for Needy Families: Update on Families Served and Work Participation   GAO-11-880T, Sep 8, 2011 http://www.gao.gov/new.items/d11880t.pdf

Government Accountability Office, Department of Homeland Security: Progress Made and Work Remaining in Implementing Homeland Security Missions 10 Years after 9/11     GAO-11-919T, Sep 7, 2011 http://www.gao.gov/new.items/d11919t.pdf

Government Accountability Office, Department of Homeland Security: Progress Made and Work Remaining in Implementing Homeland Security Missions 10 Years after 9/11  GAO-11-881, Sep 7, 2011 http://www.gao.gov/new.items/d11881.pdf

Government Accountability Office, Hurricanes Katrina and Rita: Temporary Emergency Impact Aid Provided Education Support for Displaced Students  GAO-11-839, Sep 7, 2011 http://www.gao.gov/new.items/d11839.pdf

Government Accountability Office, Information Technology: HUD's Expenditure Plan Satisfies Statutory Conditions, and Implementation of Management Controls Is Under Way   GAO-11-762, Sep 7, 2011 http://www.gao.gov/new.items/d11762.pdf

Government Accountability Office, Telecommunications: Enhanced Data Collection and Analysis Could Inform FCC's Efforts to Complete the Digital Transition of Low-Power Television Stations and Reallocate Spectrum  GAO-11-790, Sep 7, 2011 http://www.gao.gov/new.items/d11790.pdf

Government Accountability Office, U.S. Postal Service: Actions Needed to Stave off Financial Insolvency  GAO-11-926T, Sep 6, 2011 http://www.gao.gov/new.items/d11926t.pdf

The Brookings Institution: Addressing the Job Crisis - A Conversation with AFL-CIO President Richard L. Trumka, Washington, D.C., September 30, 2011

Kyle Fee and Mark E. Schweitzer, Unemployment, Labor Costs, and Recessions: Implications for the Inflation Outlook, Number 2011-17 (September 7, 2011) http://www.clevelandfed.org/research/commentary/2011/2011-17.pdf

Complete Monthly Labor Review for August 2011 (2.02 MB) http://www.bls.gov/opub/mlr/2011/09/mlr201109.pdf

James M. Borbely, Characteristics of displaced workers 2007–2009: a visual essay, Monthly Labor Review, September 2011 http://www.bls.gov/opub/mlr/2011/09/art1full.pdf

Tian Luo and Amar Mann, Survival and growth of Silicon Valley high-tech businesses born in 2000, Monthly Labor Review, September 2011 http://www.bls.gov/opub/mlr/2011/09/art2full.pdf

Jim Campbell, Multiple jobholding in States in 2010, Monthly Labor Review, September 2011

http://www.bls.gov/opub/mlr/2011/09/art3full.pdf

Working America & AFL-CIO, Sending Jobs Overseas: The Cost to America’s Economy and Working Families http://www.mesoarch.org/?archives=permanent&f=files/OutsourcingReport.pdf

Working America Job Tracker http://www.workingamerica.org/jobtracker/

National Institute on Retirement Security (NIRS), Decisions, Decisions: Retirement Plan Choices for Public Employees and Employers, Sept. 29, 2011 http://www.nirsonline.org/index.php?option=content&task=view&id=641

Treasury Inspector General for Tax Administration, Additional Actions and Data Are Needed to Further Analyze the Size and Skills of the Acquisition Workforce, Reference Number: 2011-10-072 July 26, 2011 http://www.treasury.gov/tigta/auditreports/2011reports/201110072fr.pdf

Testimony of POGO's Scott Amey on the Intelligence Community Contractors: Are We Striking the Right Balance? September 20, 2011 http://www.pogo.org/pogo-files/testimony/contract-oversight/co-gp-20110920.html

MSHA, Voices in the Workplace (Video) - (6/23/2011) http://www.msha.gov/streaming/wvx/voices.wvx

Lawrence Mishel & Heidi Shierholz, Sustained, High Joblessness Causes Lasting Damage to Wages, Benefits, Income, and Wealth EPI Briefing Paper, Aug.31, 2011 http://www.epi.org/publication/sustained_high_joblessness_causes_lasting_damage_to_wages_benefits_income_a/

Recent Labor and Employment Law Articles

Adjoa Aiyetoro, Why Reparations to African Descendants in the United States Are Essential to Democracy, 14 J. Gender Race & Just. 633 (2011)

Katayoun Alidadi, Opening Doors to Muslim Minorities in the Workplace? From India's Employment Quota to EU and Belgian Anti-discrimination Legislation, 23 Pace Int'l L. Rev. 146 (2011)

Bruce Aronson, A Japanese CALPERS or a New Model for Institutional Activism? Japan's Pension Fund Association and the Emergence of Shareholder Activism in Japan, 7 N.Y.U. J.L. & Bus. 571 (2011)

Cheryl Auster, Comment:  Promising a Better Future but Delivering Debt: Understanding the Financial and Social Impact of For-profit Colleges and the Effect of the New Program Integrity Rules, 13 Scholar 631 (2011)

Rachel Beller, Note: Whistleblower Protection Legislation of the East and West: Can it Really Reduce Corporate Fraud and Improve Corporate Governance? A Study of the Successes and Failures of Whistleblower Protection Legislation in the US and China. 7 N.Y.U. J.L.  & Bus. 873 (2011)

Lesley Benware, Note: But See Guiney: Revisiting Mandatory Random Suspicionless Drug Testing of Massachusetts Public-sector Safety-sensitive Employees in Light of House Bill 2210, 44 Suffolk U.L. Rev. 477 (2011)

Norman Bishara, Fifty Ways to Leave Your Employer: Relative Enforcement of Covenants Not to Compete, Trends, and Implications for Employee Mobility Policy, 13 U. Pa. J. Bus. L. 751 (2011)

Beryl Blaustone, Improving Clinical Judgment in Lawyering with Multidisciplinary Knowledge about Brain Function and Human Behavior: What Should Law Students Learn about Human Behavior for Effective Lawyering? 40 U. Balt. L. Rev. 607 (2011)

Thomas Booms, Note: Hacking into Federal Court: Employee "Authorization" under the Computer Fraud and Abuse Act, 13 Vand. J. Ent. & Tech. L. 543 (2011)

Roy Brooks, Making the Case for Atonement in "Post-racial America", 14 J. Gender Race & Just. 665 (2011)

Susan Cancelosi, The Bell Is Tolling: Retiree Health Benefits Post-health Reform, 19 Elder L.J. 49 (2011)

Miriam Cherry, A Taxonomy of Virtual Work, 45 Ga. L. Rev. 951 (2011)

Mary Ann Connell, et alia, Collegiality in Higher Education Employment Decisions: The Evolving Law, 37 J.C. & U.L. 529 (2011)

Jessica Clarke, Beyond Equality? Against the Universal Turn in Workplace Protections, 86 Ind. L.J. 1219 (2011)

Jeremy Corapi, Note: Huddle Up: Using Mediation to Help Settle the National Football League Labor Dispute, 21 Fordham Intell. Prop. Media & Ent. L.J. 789 (2011)

William Corbett, Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment-discrimination Law, 60 Cath. U. L. Rev. 615 (2011)

Erika Eisenoff, Note: Hear No Evil, See No Evil . . . Speak No Evil? A Re-examination of Public Employee Free Speech Rights, 9 First Amend. L. Rev. 643 (2011)

Gregory Fisher, An Evaluation of Alaska's Standard for Wage and Hour Exemptions, 28 Alaska L. Rev. 97 (2011)

Erica Gelfand, Note: Mandatory Reassignment and the ADA: The "Reassignment to a Vacant Position" Clause and the Scope of Duty it Imposes on Employers, 4 Depaul J. for Soc. Just. 313 (2011)

Michael Evan Gold, Disparate Impact Is Not Unconstitutional, 16 Tex J. on C.L. & C.R. 171 (2011)

Jyotin Hamid & Emily Mathieu, The Arbitration Fairness Act: Performing Surgery with a Hatchet Instead of a Scalpel? 74 Alb. L. Rev. 769 (2010/2011)

Shannon Hedvat, Comment:  A New Age of Pro-employer Rights: Are Automatic Assignments the Standard? 13 U. Pa. J. Bus. L. 817 (2011)

Laura Hough, Note: Finding Equilibrium: Exploring Due Process Violations in the Whistleblower Provisions of the Fraud Enforcement and Recovery Act of 2009, 19 Wm. & Mary Bill Rts. J. 1061 (2011)

Harry Hutchison, Employee "Free" Choice in the Mirror of Liberty, Fairness, and Social Welfare, 60 Cath. U. L. Rev. 575 (2011)

Will Johnson, Note: The Time, Place, and Manner of Survival: an Analysis of Day Laborers and First Amendment Limits on State Action to Exclude, 9 First Amend. L. Rev. 675 (2011)

Eden King, et alia, Discrimination in the 21st Century: Are Science and the Law Aligned? 17 Psychol. Pub. Pol'y & L. 54 (2011)

Jackson Kirklin, Note: Title VII Protections for Inmates: A Model Approach for Safeguarding Civil Rights in America's Prisons, 111 Colum. L. Rev. 1048 (2011)

Kerry Langan & Katherine Ritts, Labor and Employment, 61 Syracuse L. Rev. 831 (2011)

John Lawrence, Note: Searching for Security: The Proposed Workplace Religious Freedom Act (WRFA) and the Need for Heightened Protections for the Religious Expression of Prison Employees in the Work Environment, 9 First Amend. L. Rev. 749 (2011)

Julia Lippitt, Note: Protecting the Protectors: a Call for Fair Working Conditions for Home Health Care Workers, 19 Elder L.J. 219 (2011)

Anthony Macauley, Recent Developments in Workers' Compensation and Employers' Liability Law, 46 Tort Trial & Ins. Prac. L.J. 667 (2011)

Aamir Mahboob, Comment: The Judicial-legislative War: Employer Intentional Torts in Ohio, 42 U. Tol. L. Rev. 525 (2011)

James Masteralexis & Lisa Masteralexis, If You're Hurt, Where Is Home? Recently Drafted Minor League Baseball Players Are Compelled to Bring Workers' Compensation Action in Team's Home State or in Jurisdiction More Favorable to Employers, 21 Marq. Sports L. Rev. 575 (2011)

Kemit Mawakana, Historically Black College and University Law Schools: Generating Multitudes of Effective Social Engineers, 14 J. Gender Race & Just. 679 (2011)

Michelle Mitchell, Note: Gender and Unemployment Insurance: Why Women Receive Unemployment Benefits at Lower Rates than Men and Will Unemployment Insurance Reform Close the Gender Gap? 20 Tex. J. Women & L. 55 (2010)

Roxana Mondragon, Note: Injured Undocumented Workers and Their Workplace Rights: Advocating for a Retaliation per Se Rule, 44 Colum. J.L. & Soc. Probs. 447 (2011)

Pamela Moore, et alia, Recent Developments in Employment Law, 46 Tort Trial & Ins. Prac. L.J. 317 (2011)

Luthien Niland, Comment: The Cost of the Bright Red Strawberry: The Dangerous Failure of Pesticide Regulations to Account for Child Farmworkers, 4 Golden Gate U. Envtl. L.J. 363 (2011)

Obie Okuh, Comment: When the Circuit Breakers Trip: Resetting the Cfaa to Combat Rogue Employee Access, 21 Alb. L.J. Sci. & Tech. 637 (2011)

Menahem Pasternak, "Employment Discrimination:" Some Economic Definitions, Critique and Legal Implications, 33 N.C. Cent. L. Rev. 163 (2011)

Jarrod Reece, Note: Revisiting Class-based Affirmative Action in Government Contracting, 88 Wash. U. L. Rev. 1309 (2011)

Jessica Rosenbaum, Comment: Exploiting Dreams: H-1b Visa Fraud, its Effects, and Potential Solutions, 13 U. Pa. J. Bus. L. 797 (2011)

Paul Sarahan & Greg King, University Nano Labs: Assessing and Minimizing Environmental, Health, and Safety Risks, 37 J.C. & U.L. 589 (2011)

Patricia Seith, Civil Rights, Labor, and the Politics of Class Action Jurisdiction, 7 Stan. J. C.R. & C.L. 83 (2011)

Monica Skanes, Comment: The Truth Behind "Final and Binding" Arbitration: A Study of Vacated Arbitration Awards in the New York Appellate Division, 74 Alb. L. Rev. 983 (2010/2011)

Kate Swearengen, Note: Tailoring the Taylor Law: Restoring a Balance of Power to Bargaining, 44 Colum. J.L. & Soc. Probs. 513 (2011)

Symposium: Race, Gender, and Class at a Crossroads: A Survey of Their Intersection in Employment, Economics, and the Law, 14 J. Gender Race & Just. 601 (2011)

Olivia Szwalbnest, Note: Discriminating Because of "Pizzazz": Why Discrimination Based on Sexual Orientation Evidences Sexual Discrimination under the Sex-stereotyping Doctrine of Title Vii, 20 Tex. J. Women & L. 75 (2010)

Mitchell Travis, Making Space: Law and Science Fiction, 23 Law & Lit. 241 (2011)

Atsushi Tsuneki & Manabu Matsunaka, Labor Relations and Labor Law in Japan, 20 Pac. Rim L. & Pol'y J. 529 (2011)

Carlton Waterhouse, Total Recall: Restoring the Public Memory of Enslaved African-Americans and the American System of Slavery Through Recitificatory Justice and Reparations, 14 J. Gender Race & Just. 703 (2011)

Darnell Weeden, In Response for the Call for Justice, Historically Black Law Schools Represent the New Mission of Educational Diversity in the Legal Profession, 14 J. Gender Race & Just. 747 (2011)

Roberta Wolf, Note: Conflicting Anti-doping Laws in Professional Sports: Collective Bargaining Agreements v. State Law, 34 Seattle U. L. Rev. 1605 (2011)

Kamille Wolff, From Pipeline to Pipe Dream: The HBCU Effect on Law School Deans of Color, 14 J. Gender Race & Just. 765 (2011)

Future Newsletters

The Labor and Employment Relations Association (LERA) Labor and Employment Law (LEL) Section Newsletter, Labor and the Law, is available each month via the LERA discussion list by email and posted on the LERA website. It is edited by Ellen Dannin, Fannie Weiss Distinguished Faculty Scholar and Professor of Law, Pennsylvania State University Dickinson School of Law, 327 Katz Building, University Park, PA 16802-1912. ejd13(at)psu(dot)edu.

To subscribe to the LERA discussion lists go to http://www.leraweb.org/participate/email-listservs

To learn more about the LERA and the opportunities if offers, go to the main website at http://www.leraweb.org/

The most current and back issues of the LEL newsletter may be viewed at http://www.leraweb.org/publications/labor-and-employment-law-newsletter

Copyright © Ellen Dannin 2011. All Rights Reserved. The LEL News may be reposted but only if it includes the copyright notice and the entire document.


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To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at:
Ellen Dannin, Professor of Law
Pennsylvania State University
Dickinson School of Law
327 Katz Building
University Park, PA 16802-1912