Labor and Employment Law News - September 2007

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2007

Alter Ego and Disguised Continuance Alter Ego Doctrines
A law would be ineffective if its enforcement could be hobbled by subterfuges. To prevent this end-run, the NLRB has developed the doctrines of alter ego and disguised continuance alter ego. The first applies when an employer sets up a second company that operates in a way that allows the first to evade the law. The second is similar, except that the employer closes or claims to close the first business while continuing the operation through another company.
An example of a disguised continuance alter ego is found in a recent NLRB case. The owner of a small union construction company closed it, while his live-in girlfriend who had no experience in construction and few financial resources, set up a new non-union company that did the same work. An alter ego situation exists when facts show that the companies “have substantially identical ownership, management, business purpose, operations, equipment, customers, supervisors, and shared premises and facilities.” Also relevant – but not essential – is whether one entity was created in an attempt to enable the other to avoid its legal obligations. In the past, “The Board has found alter ego status even though the entities had different owners when the owners were in a close familial relationship.”
In this case, the Board majority reversed the Administrative Law Judge and held that, because the couple were not married, no alter ego finding could be made. The dissent contended that, given the operation of their relationship in connection with this new company, marriage was not a requirement. U.S. Reinforcing Inc., 350 NLRB Case No.41 (July 31, 2007).

Contracting Out of Employee Status
Employee status affects legal coverage. As in the prior case, contracting out of that status, would permit contracting out of the law. In a recent case, the New Jersey Supreme Court majority held that an agreement that a worker was an independent contractor did not trump the reality that the worker’s duties and role in the workplace were those of an employee. The court therefore held that he was protected as an employee under New Jersey's whistleblower statute. D'Annunzio v. Prudential Ins. Co. of Am., Case No.A-119-2005 (N.J. July 25, 2007).
When he began work in 2000, the plaintiff signed a contract that said the parties did not intend to create an employer-employee relationship. However, his work was an integral part of the employer’s functions and the employer controlled the means by which he performed his work. These factors are signs of an employer-employee relationship. In addition, the majority noted that in this case involving whistleblowing, demanded that protections to encourage reporting fraud, waste, and abuse.
The dissent contended that a strict reading of the statute would not allow it to include the plaintiff as an employee.

Who is the Employer?
In the same vein as the case just discussed, the Seventh Circuit Court of Appeals has held that an employer cannot shield itself from wage obligations by using a middleman labor contractor. Reyes v. Remington Hybrid Seed Co., Case No.05-1628, (7th Cir. July 20, 2007).

Defamation and Privilege
Employers can be liable for making defamatory statements about employees or former employees; however, the law provides employers with protections from defamation liability under certain circumstances. In general, to prove defamation, a plaintiff must show that the defendant published (that is, communicated) “false and defamatory statements concerning him, without reasonable care as to whether those statements were true or false, which resulted in actual damage to the plaintiff.” A statement that does not meet all of these requirements is not defamatory. In addition, courts have given employers privileges that protect them from liability when making statements about employees under certain conditions. American Airlines Inc. v. Geddes, Case No. 3D05-737(Fla. Dist. Ct. App. 2007)
In a recent Florida case, an employee claimed he had been defamed during the course of an investigation of a charge of misconduct. The court held that the employer and manager were not liable for defamation, because the human resources manager’s statements were true, in good faith, and privileged. Statements made to corporate executives or managers were not defamatory because “they are, in effect, being made to the corporation itself, and thus lack the essential element of publication.” In addition, even if a defamatory statement is published, it may be conditionally privileged as long as the privilege is not abused and was made for a purpose which the courts have decided needs to be protected. In this case, there was a need to communicate information about the investigation to company managers and executives, during the investigation, and to answer co-workers’ questions.

Telephone Use and Workplace Privacy Rights
A number of laws govern the act of monitoring employee telephone conversations. In a recent Rhode Island case, the city’s audio recording system monitored employee office telephones, as well as emergency lines, but employees were not told this. Over 100 employees sued the city and public officials for violations of the Fourth Amendment right to be free of unreasonable searches and seizures and of federal and state wiretapping statutes. Walden v. City of Providence, Case No.04-304S (D. R.I. July 6, 2007)
The court found that the city employees had a subjective, reasonable expectation of privacy in the use of their office telephones and found no reason to exempt the defendants from the constitutional and legal claims made against them. The court noted that the director who ordered the system to be installed, had lines in his and other communications offices removed from the system.

Web Links

World Ecomomic Forum, The Global Information Technology Report 2006-2007 http://www.weforum.org/en/initiatives/gcp/Global%20Information%20Technology%20Report/index.htm

National Center for Education Statistics, To Teach or Not to Teach?
http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2007163

Michael Gochfeld & Sandra Mohr, Protecting Contract Workers: Case Study of the US Department of Energy's Nuclear and Chemical Waste Management, Am J Public Health. (Jul 31, 2007) http://lib.bioinfo.pl/pmid:17666686

NIOSH, Emergency Response Resources http://www.cdc.gov/niosh/topics/emres/natural.html

How to Improve ROI: Employment Solutions for Small Business - A Conversation Between W. Roy Grizzard, Jr., Ed.D., Former Assistant Secretary, USDOL/Office Of Disability Employment Policy, and Ralph W. Shrader, Ph.D., Chairman and CEO, Booz Allen Hamilton - October 2006 (07:45) http://www.dol.gov/odep/newfreedom/coc2007/videos.htm

Catalyst, The Double-Bind Dilemma for Women in Leadership: Damned if You Do, Doomed if You Don’t http://www.catalyst.org/files/full/2007%20Double%20Bind.pdf

Small Business Administration's Office of Advocacy, The Relationship Between Employee Turnover and Employee Compensation in Small Business http://www.sba.gov/advo/research/rs308tot.pdf

Congressional Research Service, Leave Benefits in the United States, No.RL34088 (Aug. 16, 2007) [no public link available yet via CRS or Open CRS http://www.opencrs.com/]

Broad International Coalition Issues Urgent Call For Strong Oversight of Nanotechnology http://www.icta.org/about/index.cfm

Recent Labor and Employment Law Articles

Boris Abbey, Comment: The Sword of North Carolina's “Unfair and Deceptive Trade Practices Act”: Combating North Carolina Businesses Who Undercut Competition by Hiring Illegal Immigrants, 29 Campbell L. Rev. 333 (2007)

Nancy Altman, Social Security and the Low-Income Worker, 56 Am. U. L. Rev. 1139 (2007)

Danielle Barrett, Note: Culture or Rights Violation? An Examination of the Role of Jamaica's Sociopolitical Culture on Women's Rights, 14 Buff. Women's L.J. 11 (2005-2006)

Leonard Baynes & Neil Carlson, Rethinking the Discourse on Race: A Symposium on How the Lack of Racial Diversity in the Media Affects Social Justice and Policy, 21 St. John's J. Legal Comment 575 (2007)

Laura Bettenhausen, Note: The FAA and the USERRA: Pro-Arbitration Policies Can Undermine Federal Protection of Military Personnel, 2007 J. Disp. Resol. 267

Michael Bryce, Adr Education from a Litigator/educator Perspective, 81 St. John's L. Rev. 337 (2007)

Brown, Dorothy A. Pensions and Risk Aversion: The Influence of Race, Ethnicity, and Class on Investor Behavior, 11 Lewis & Clark L. Rev. 385 (2007)

Brown, Stephen A. Comment: Illegal Immigrants in the Workplace: Why Electronic Verification Benefits Employers, 8 N.C. J.L. & Tech. 349 (2007)

Judith Conti, The Employment Law Year in Review June 2004-June 2005, 10 UDC/DCSL L. Rev. 207 (2007)

Frank Cross, Identifying the Virtues of the Common Law, 15 Sup. Ct. Econ. Rev. 21 (2007)

Joel Cutcher-Gershenfeld, et alia, Collective Bargaining in the Twenty- First Century: A Negotiations Institution at Risk, 23 Negotiation J. 249 (2007)

Clare Diefenbach, Same-Sex Sexual Harassment after Oncale: Meeting the "Because of ... Sex" Requirement, 22 Berkeley J. Gender L. & Just. 42 (2007)

William Donohue & Paul Taylor, Role Effects in Negotiation: The One-down Phenomenon, 23 Negotiation J. 307 (2007)

Israel Doron & Tal Golan, Aging, Globalization, and the Legal Construction of "Residence": The Case of Old-age Pensions in Israel, 15 Elder L.J. 1 (2007)

Henry Drummonds, The Aging of the Boomers and the Coming Crisis in America's Changing Retirement and Elder Care Systems,11 Lewis & Clark L. Rev. 267 (2007)

Danielle Duryea, Note: Gendering the Gentrification of Public Housing: Hope Vi's Disparate Impact on Lowest-Income African American Women, 13 Geo. J. on Pov. L. & Pol'y 567 (2006)

Daniel Egan, Comment: The Dwindling Class of "Disabled Individuals": An Exemplification of the Americans with Disabilities Act's Inadequacies, 81 St. John's L. Rev. 491 (2007)

Leora Eisenstadt, Privileged but Equal? A Comparison of U.S. and Israeli Notions of Sex Equality in Employment Law, 40 Vand. J. Transnat'l L. 357(2007)

Cynthia Estlund,. Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem, 2006 Sup. Ct. Rev. 115

Lara Farley, Comment: A Matter of Public Concern: "Official Duties" of Employment Gag Public Employee Free Speech Rights, 46 Washburn L.J. 603 (2007)

Kenneth Feinberg, How Can ADR Alleviate Long-Standing Social Problems? 34 Fordham Urb. L.J. 785 (2007)

Rosa-Linda Fregoso, We Want Them Alive!: The Culture and Politics of Human Rights, 22 Berkeley J. Gender L. & Just. 367 (2007)

Roberto Galbiati & Nuno Garoupa, Keeping Stigma out of Administrative Law: An Explanation of Consistent Beliefs, 15 Sup. Ct. Econ. Rev. 273 (2007)

Rafael Gely & Leonard Bierman, Social Isolation and American Workers: Employee Blogging and Legal Reform, 20 Harv. J.L. & Tech. 287 (2007)

Bryan Gerbracht, Note: Export Processing Zones and Free Trade Agreements: Lessons from the North American Agreement on Labor Cooperation, 16 Transnat'l L. & Contemp. Probs. 1029 (2007)

Julius Getman, Was Harry Shulman Right? The Development of Arbitration in Labor Disputes, 81 St. John's L. Rev. 15 (2007)

Brian Groesser, Comment: The Latest Example of How the Supreme Court Has Turned the Federal Arbitration Act into a State-Defying Monstrosity, 29 N.C. Cent. L.J. 250 (2007)

David Gregory, & Francis Cavanagh, A Comparative Assessment of Labor Dispute Resolution in the United States & the United Kingdom, 81 St. John's L. Rev. 29 (2007)

Thomas Halket, The Use of Technology in Arbitration: Ensuring the Future Is Available to Both Parties, 81 St. John's L. Rev. 269 (2007)

Benjamin Hensler, Nao Vale a Pena? (Not Worth the Trouble?) Afro-Brazilian Workers and Brazilian Anti-discrimination Law, 30 Hastings Int'l & Comp. L. Rev. 267 (2007)

Mark Janis, Public Policy and Ethics. Americans and the Quest for an Ethical International Law, 109 W. Va. L. Rev. 571 (2007)

Richard Kaplan, Retirement Planning's Greatest Gap: Funding Long-Term Care, 11 Lewis & Clark L. Rev. 407 (2007)

Laura Koenig, Note: Lies, Damned Lies, and Statistics? Structured Settlements, Factoring, and the Federal Government, 82 Ind. L.J. 809 (2007)

Edmund Lambeth, Wanted: Leaders, Journalists, Scholars, and Citizens with the Right Stuff! A Reflection on Conflict, Journalism, and Democracy, 2007 J. Disp. Resol. 247

Nancy Leong, Multiracial Identity and Affirmative Action, 12 UCLA Asian Pac. Am. L.J. 1 (2006-2007)

Douglas McLeod, News Coverage and Social Protest: How the Media's Protest Paradigm Exacerbates Social Conflict, 2007 J. Disp. Resol. 185

Bartlett McGuire, Age Restrictions in Women's Professional Tennis: A Case Study of Procompetitive Restraints of Trade, 1 J. Int'l Media & Ent. L. 199 (2007)

Jill Monnin, Comment: Extending the Reach of the Chinese Labor Law: How Does the Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution? 16 Pac. Rim L. & Pol'y J. 753 (2007)

Kathryn Moore, Social Security Reform: Fundamental Restructuring or Incremental Change? 11 Lewis & Clark L. Rev. 341 (2007)

Michael Murphy, Pension Plans and the Prospects of Corporate Self- Regulation, 5 Depaul Bus. & Com. L.J. 503 (2007)

Jacqueline Nolan-Haley, Teaching Comparative Perspectives in Mediation: Some Preliminary Reflections, 81 St. John's L. Rev. 259 (2007)

Jeffrey Nye, Note: Constitutional Liability of Private Correctional Employees and the Future of Bivens Jurisprudence, 75 U. Cin. L. Rev. 1245 (2007)

Panel: Women in the Global Economy, 22 Berkeley J. Gender L. & Just. 325 (2007)

Kristen Peel, Note: Louisiana Revised Statutes 23:967: The Questionable Interpretation of Louisiana's Whistleblower Statute and a Solution for the Courts, 34 S.U. L. Rev. 103 (2007)

Lani Perlman, Note: Guarding the Government's Coffers: The Need for Competition Requirements to Safeguard Federal Government Procurement. 75 Fordham L. Rev. 3187 (2007)

Don Peters, When Lawyers Move Their Lips: Attorney Truthfulness in Mediation and a Modest Proposal, 2007 J. Disp. Resol. 119

Jason Peterson, Note: The Big Dig Disaster: Was Design-Build the Answer? 40 Suffolk U. L. Rev. 909 (2007)

Andrew Pike, No Wealthy Parent Left Behind: An Analysis of Tax Subsidies for Higher Education, 56 Am. U. L. Rev. 1229 (2007)

Jean Poitras, The Paradox of Accepting One's Share of Responsibility in Mediation, 23 Negotiation J. 267 (2007)

Qi Qiu & Glen Cameron, A Public Relations Perspective to Manage Conflict in a Public Health Crisis, 2007 J. Disp. Resol. 211

Natalie Prescott, Employers on the Fence: A Guide to the Immigratory Workplace, 29 Campbell L. Rev. 181 (2007)

Shannyn Riba, Note: The Use of Genetic Information in Health Insurance: Who Will Be Helped, Who Will Be Harmed and Possible Long-term Effects, 16 S. Cal. Rev. L. & Soc. Just. 469 (2007)

Mitchell Rubinstein, Assignment of Labor Arbitration, 81 St. John's L. Rev. 41 (2007)

Jennifer Samsel, Note: Evolving Judicial Review of Arbitration Awards: Is Massachusetts Lagging Behind in a "Manifest Disregard" of Arbitrators' Substantive Errors of Law? 40 Suffolk U. L. Rev. 931 (2007)

Byron Scott, Carolina Escudero & Anya Litvak, Media, Memory, and Forgiveness: Case Studies in South Africa and Argentina's Conflict Resolution Processes, 2007 J. Disp. Resol. 205

Philip Seib, News Coverage, the Expansion of Discourse, and Conflict, 2007 J. Disp. Resol. 239

Susan Stabile, Is it Time to Admit the Failure of an Employer-Based Pension System? 11 Lewis & Clark L. Rev. 305 (2007)

Katherine Stone, A Fatal Mismatch: Employer-Centric Benefits in a Boundaryless World, 11 Lewis & Clark L. Rev. 451 (2007)

Jessica Sturgeon, Note: Setting an Unreasonable Standard, 56 Duke L.J. 1377 (2007)

Susan Sturm & Howard Gadlin, Conflict Resolution and Systemic Change. 2007 J. Disp. Resol. 1

Brianne Sullenger, Comment: Telecommuting: A Reasonable Accommodation under the Americans with Disabilities Act as Technology Advances, 19 Regent U. L. Rev. 537 (2006-2007)

Symposium: Transatlantic Perspectives on Alternative Dispute Resolution, 81 St. John's L. Rev. 1 (2007)

Symposium: Gender & Migration, 22 Berkeley J. Gender L. & Just. 302(2007)

Symposium: Issues in Pretrial Litigation, 40 Creighton L. Rev. 651 (2007)

Symposium: The Aging of the Baby Boomers and America's Changing Retirement System, 11 Lewis & Clark L. Rev. 267 (2007)

Symposium: Low-income Workers and the Federal Tax System, 56 Am. U. L. Rev. 1117 (2007)

Symposium: "ADR as a Tool for Achieving Social Justice", 34 Fordham Urb. L.J. 785 (2007)

Symposium: The Global Advancement of Women: Barriers and Best Practices, 6 U. Md. L.J. Race Relig. Gender & Class 273 (2006)

Kathryne Tafollayoung, Note: The Privatization of California Correctional Facilities: A Population-Based Approach, 18 Stan. L. & Pol'y Rev. 438 (2007)

Nina Tarr, Employment and Economic Security for Victims of Domestic Abuse, 16 S. Cal. Rev. L. & Soc. Just. 371 (2007)

Iryll Umel, Comment: Cultivating Strength: The Role of the Pilipino Workers' Center Courage Campaign in Addressing Labor Violations Committed Against Filipinos in the Los Angeles Private Home Care Industry, 12 UCLA Asian Pac. Am. L.J. 35 (2006-2007)

Dennis Ventry, Welfare by Any Other Name: Tax Transfers and the EITC, 56 Am. U. L. Rev. 1261 (2007)

Michael Watkins, Teaching Students to Shape the Game: Negotiation Architecture and the Design of Manageably Dynamic Simulations, 23 Negotiation J. 333 (2007)

Roselle Wissler & Bob Dauber, Court-connected Arbitration in the Superior Court of Arizona: A Study of its Performance and Proposed Rule Changes, 2007 J. Disp. Resol. 65

Richard Wilkins, et alia, Supreme Court Voting Behavior 2005 Term, 34 Hastings Const. L.Q. 505 (2007)

Adrien Wing & Hisham Kassim, Hamas, Constitutionalism, and Palestinian Women, 50 How. L.J. 479 (2007)

Cynthia Wolken, Feminist Legal Theory and Human Trafficking in the United States: Towards a New Framework, 6 U. Md. L.J. Race Relig. Gender & Class 407 (2006)