Labor and Employment Relations Association
Labor and Employment Law News - September 2011
Labor and the Law: Current News and Information
from the LERA Section on Labor and Employment Law (LEL) © 2011
Published since 1997
September 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.
Agreeing to Arbitrate All Workplace Disputes?
Since 1991, it has become common for employers to require their employees to arbitrate legal violations and to give up their rights to file a lawsuit. A recent decision from the 6th Circuit Court of Appeals found that an employee had not lost her right to sue her employer for violating her rights under the Americans with Disabilities Act, because she was not aware that the employee handbook contained an agreement to arbitrate. As a result, she could not have intended to waive her right to litigate. This result fits with normal contract law, which requires an offer and an acceptance before a contract can exist. Under normal contract law, parties must have the intent to form a contract, but many courts have not required intent in the case of employment arbitration. The plaintiff in this case was fired because she had cancer surgery and would require time to recuperate. Her employer asked the court to dismiss her ADA case, because the plaintiff was required to arbitrate all legal claims against her employer. Hergenreder v. Bickford Senior Living Group, Case No.10-1474 (6th Cir. Aug. 30, 2011).
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020110830177.xml&docbase=CSLWAR3-2007-CURR
The court’s decision reviews arguments commonly made that an employee is required to take all legal claims to arbitration. As the court sees the case, “At bottom, Bickford’s argument boils down to the following contention: if Hergenreder has no reason to believe that a certain document contains an offer to enter into an agreement, and if she is not contractually obligated to read that document, then she will nonetheless be bound to the agreement contained in that document if she unwittingly takes actions that the document says will constitute acceptance of the offer. There is no support for this proposition in Michigan law.” The court also concluded that there was no evidence that the plaintiff had waived her right to a jury trial, a right protected by the 7th Amendment of the U.S. Constitution.
Polygraphs and Reasonable Suspicion
Federal law strictly limits and regulates when and how an employee can be asked to take a lie detector test. A recent case lays out the requirements of the Employee Polygraph Protection Act (EPPA) in a case involving an investigation into the disappearance of $58,000 from a branch of Washington Mutual Bank. The plaintiff claimed that his former employer’s request that he take a polygraph test violated the EPPA’s procedures. The plaintiff employee also claimed that his employer had violated his COBRA rights to continue his employer-provided health insurance after his termination. Cummings v. JP Morgan Chase Bank, Case No.10-10706 (11th Cir. Aug. 22, 2011). http://www.ca11.uscourts.gov/opinions/ops/201010706.pdf
The Employee Polygraph Protection Act (EPPA) can actually apply more broadly than just to lie detectors. More information on the EPPA may be found here. http://www.dol.gov/compliance/laws/comp-eppa.htm
Worker Retention Ordinances Preempted by the NLRA?
Some cities have enacted worker retention laws, laws that require employers to retain employees in certain industries during a change in a company’s ownership, control, or operation. The laws are intended to protect jobs, families, and communities by retaining experienced workers. A Rhode Island case involved an attack on a worker retention ordinance on the grounds that the (1) NLRA preempted the ordinance; (2) it violated the Constitution’s contracts clause of the US Constitution (3) and the Equal Protection Clause of the US Constitution; and (4) it violated the Providence Home Rule Charter. The federal district court’s decision provides a good discussion of each of these issues. The judge ultimately found against the plaintiffs, although the judge remarked that the NLRA preemption issues presented a close case. Rhode Island Hospitality Association v. City of Providence, Case No.09-527-ML (D. R.I. Mar. 31, 2011)
Web Links
Report of the Acting NLRB General Counsel Concerning Social Media Cases, OM 11-74, August 18, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743
Public Employees for Environmental Responsibility (PEER), States Strengthening Their Whistleblower Laws — Red and Blue States See Whistleblowers as Tool for Cutting Waste and Fraud, August 17, 2011 http://www.peer.org/news/news_id.php?row_id=1513
BLS, TED (The Editor’s Desk), Average time spent caring for household children, 2006–2010, September 2, 2011 http://www.bls.gov/opub/ted/2011/ted_20110902_data.htm
BLS, TED (The Editor’s Desk), Interactive dashboards from International Labor Comparisons, September 1, 2011 http://www.bls.gov/opub/ted/2011/ted_20110901.htm
BLS Office of Publications & Special Studies, Program Perspectives on Outpatient Prescription Drug Coverage August 2011 http://www.bls.gov/opub/perspectives/program_perspectives_vol3_issue6.pdf
Complete Monthly Labor Review for August 2011 (1.5 MB) http://www.bls.gov/opub/mlr/2011/08/mlr201108.pdf
Katherine Bauer Klemmer and Robert Lazaneo, Job openings and hires show little postrecession improvement, Monthly Labor Review August 2011 http://www.bls.gov/opub/mlr/2011/08/art1full.pdf
Caryn N. Bruyere, Guy L. Podgornik, and James R. Spletzer, Employment dynamics over the last decade, Monthly Labor Review August 2011 http://www.bls.gov/opub/mlr/2011/08/art2full.pdf
Maggie C. Woodward, Jobless rates in different types of labor market areas, 2000–2010, Monthly Labor Review August 2011 http://www.bls.gov/opub/mlr/2011/08/art3full.pdf
Complete Monthly Labor Review, July 2011 http://www.bls.gov/opub/mlr/2011/07/mlr201107.pdf
Harriet B. Presser and Brian W. Ward, Nonstandard work schedules over the life course: A first look, Monthly Labor Review, July 2011 http://www.bls.gov/opub/mlr/2011/07/art1full.pdf
Keenan Dworak-Fisher and William J. Wiatrowski, Tackling complexity in retirement benefits: challenges and directions for the NCS, Monthly Labor Review, July 2011 http://www.bls.gov/opub/mlr/2011/07/art2full.pdf
Keenan Dworak-Fisher and William J. Wiatrowski, What is a benefit plan? Clarifying the NCS definition as health and retirement benefits evolve, Monthly Labor Review, July 2011 http://www.bls.gov/opub/mlr/2011/07/art3full.pdf
Congressional Budget Office (CBO), Estimated Impact of the American Recovery and Reinvestment Act on Employment and Economic Output from April 2011 Through June 2011 (August 24, 2011) http://www.cbo.gov/doc.cfm?index=12385
Congressional Budget Office (CBO), Budget and Economic Outlook: An Update (August 11, 2011) http://www.cbo.gov/doc.cfm?index=12316
Government Accountability Office, Defined Benefit Pension Plans: Plans Face Challenges When Investing in Hedge Funds and Private Equity GAO-11-901SP, Aug 31, 2011 http://www.gao.gov/new.items/d11901sp.pdf
Government Accountability Office, Medicare Integrity Program: CMS Used Increased Funding for New Activities but Could Improve Measurement of Program Effectiveness GAO-11-592, Jul 29, 2011 http://www.gao.gov/new.items/d11592.pdf
Government Accountability Office, Private Health Insurance: Early Experiences Implementing New Medical Loss Ratio Requirements GAO-11-711, Jul 29, 2011 http://www.gao.gov/new.items/d11711.pdf
Pre-Existing Condition Insurance Plans: Program Features, Early Enrollment and Spending Trends, and Federal Oversight Activities GAO-11-662, Jul 27, 2011 http://www.gao.gov/new.items/d11662.pdf
Government Accountability Office, Medicare Integrity Program: CMS Used Increased Funding for New Activities but Could Improve Measurement of Program Effectiveness GAO-11-592, Jul 29, 2011 http://www.gao.gov/new.items/d11592.pdf
Government Accountability Office, Private Health Insurance: Early Experiences Implementing New Medical Loss Ratio Requirements GAO-11-711, Jul 29, 2011 http://www.gao.gov/new.items/d11711.pdf
Government Accountability Office, Pre-Existing Condition Insurance Plans: Program Features, Early Enrollment and Spending Trends, and Federal Oversight Activities GAO-11-662, Jul 27, 2011 http://www.gao.gov/new.items/d11662.pdf
Anthony P. Carnevale, Stephen J. Rose and Ban Cheah, The College Payoff: Education, Occupations, Lifetime Earnings (Georgetown University Center on Education and the Workforce) Georgetown University Center on Education and the Workforce http://cew.georgetown.edu/collegepayoff/
White House Rural Council, Jobs and Economic Security for Rural America, August 2011 http://www.whitehouse.gov/sites/leraweb.org/files/jobs_economic_security_rural_america.pdf
White House, White House Rural Council Delivers Report on Rural America – Jobs and Economic Security for Rural America August 12, 2011
Mary Filardo, Jared Bernstein, and Ross Eisenbrey, Creating Jobs Through FAST!, a Proposed New Infrastructure Program to Repair America’s Public Schools Aug. 11, 2011
http://web.epi-data.org/temp727/Fix%20America%27s%20Schools_Today_FINAL.pdf
Public Citizen, Regulations at Work: Five Rules that Save Workers' Lives and Protect Their Health, July 2011 http://www.citizen.org/documents/regulations-at-work-report.pdf
Recent Labor and Employment Law Articles
Jonathan Alger, No Longer Separate, Not Yet Equal: A Study of the Impact of Elite College Admissions with Regard to Race, Class, and Social Mobility, a review of Thomas J. Espenshade and Alexandria Walton, No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life, 37 J.C.& U.L. 425 (2011)
Ralph Anzivino, Drafting Restrictive Covenants in Employment Contracts, 94 Marq. L. Rev. 499 (2010)
Matthew Arentsen, Comment. Chamber of Commerce v. Edmondson: Employment Authorization Laws, States' Rights, and Federal Preemption – An Informed Approach, 88 Denv. U. L. Rev. 375 (2011)
Barak-Erez, Daphne & Jayna Kothari, When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change, 47 Stan. J. Int'l L. 175 (2011)
Theresa Beiner, Shift Happens: The U.S. Supreme Court's Shifting Antidiscrimination Rhetoric, 42 U. Tol. L. Rev. 37 (2010)
Susan Bisom-Rapp, Annual Jack Pemberton Lecture on Workplace Justice: Learning from Troubled Times: Pursuing Equality Outside an Anti-discrimination Law Frame by Rethinking the Promotion of Safe Work During the Bush Administration, 45 U.S.F.L. Rev. 603 (2011)
Debra, Burke, et alia, Minimum Wage and Unemployment Rates: A Study of Contiguous Counties, 46 Gonz. L. Rev. 661 (2010/11)
Margaret Byerly, A Report to the IPCC on Research Connecting Human Settlements, Infrastructure, and Climate Change, 28 Pace Envtl. L. Rev. 936 (2011)
Katherine Calogero, Note: Become a Fan of Government Procurement on Facebook: How the Federal Government's Acquisition Workforce Can Use Social Networking Websites to Recruit New Employees, 40 Pub. Cont. L.J. 807 (2011)
Kimberly Cheeseman, Smith v. Xerox Corporation: The Fifth Circuit Maintains Mixed-motive Applicability in Title VII Retaliation Claims, 85 Tul. L. Rev. 1395 (2011)
Daniel Conkle, Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty, 32 Cardozo L. Rev. 1755 (2011)
Roberto Corrada, Ricci's Dicta: Signaling a New Standard for Affirmative Action under Title VII? 46 Wake Forest L. Rev. 241 (2011)
Harvey Cotton & Leslie Arnould, Health Care Reform Yesterday & Tomorrow: The Impact of State and Federal Law on Employers, 7 J. Health & Biomed. L. 91 (2011)
Julia Di Vito, Note: The New Meaning of New Process Steel, L.P. v. NLRB, 46 Wake Forest L. Rev. 307 (2011)
Roger Dyer, Note: Qualifying for the Title VII Religious Organization Exemption: Federal Circuits Split over Proper Test, 76 Mo. L. Rev. 545 (2011)
David Engstrom, The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972, 63 Stan. L. Rev. 1071 (2011)
Charlotte Garden, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, 79 Fordham L. Rev. 2617 (2011)
Mark Garmaise, Ties That Truly Bind: Noncompetition Agreements, Executive Compensation, and Firm Investment, 27 J.L. Econ. & Org. 376 (2011)
Melissa Hart, From Wards Cove to Ricci: Struggling Against "Built-in Headwinds" of a Skeptical Court, 46 Wake Forest L. Rev. 261 (2011)
Susan Harthill, Workplace Bullying as an Occupational Safety and Health Matter: A Comparative Analysis, 34 Hastings Int'l & Comp. L. Rev. 253 (2011)
Hilary Josephs, Residence and Nationality as Determinants of Status in Modern China, 46 Tex. Int'l L.J. 295 (2011)
Timothy Kelley, Note. Labor Law Gap-Filling: Federal Common Law Ideals Versus Litigation Realities, 72 Ohio St. L.J. 437 (2011)
Danielle Kidd, Note: E-verify: Promoting Accountability and Transparency in Federal Procurement Through Electronic Employment Verification, 40 Pub. Cont. L.J. 829 (2011)
Barbara Lee & Kathleen Rinehart, Dealing with Troublesome College Faculty and Staff: Legal and Policy Issues. 37 J.C.& U.L. 359 (2011)
Bryan Lee, Note: The U.N. Convention on the Rights of Persons with Disabilities and its Impact upon Involuntary Civil Commitment of Individuals with Developmental Disabilities, 44 Colum. J.L. & Soc. Probs. 393 (2011)
Franck Lecomte, Embedding Employment Rights in Europe, 17 Colum. J. Eur. L. 1 (2010/2011)
Michael Leroy, The New Wages of War – Devaluing Death and Injury: Conceptualizing Duty and Employment in Combat Zones, 22 Stan. L. & Pol'y Rev. 217 (2011)
Joseph Lipps, Note: State Lifestyle Statutes and the Blogosphere: Autonomy for Private Employees in the Internet Age, 72 Ohio St. L.J. 645 (2011)
Amy Major, An Exercise in Backwards Logic: How Expanding the Family and Medical Leave Act Can Enhance Business Productivity During a Public Health Emergency, 27 J. Contemp. Health L. & Pol'y 251 (2011)
Moshe Marvit, On the Greatest Property Transfer That Wasn't: How the National Labor Relations Act Chose Employee Rights and the Supreme Court Chose Property Rights, 38 S.U. L. Rev. 79 (2010)
Carol Miller, EEOC Reinforces Broad Interpretation of ADAAA Disability Qualification: But What Does "Substantially Limits" Mean? 76 Mo. L. Rev. 43 (2011)
Adam Mintz, Note: Do Corporate Rights Trump Individual Rights? Preserving an Individual Rights Model in a Pluralist Society,.44 Colum. J.L. & Soc. Probs. 267 (2011)
Anastasia Niedrich, Note: Removing Categorical Constraints on Equal Employment Opportunities and Anti-Discrimination Protections, 18 Mich. J. Gender & L. 25 (2011)
Daniel Oakes, Note: Inching Toward Balance: Reaching Proper Reform of the Alaska Native Corporations' 8(a) Contracting Preferences, 40 Pub. Cont. L.J. 777 (2011)
Jason Ohana, Note: Texas Elective Workers' Compensation: A Model of Innovation? 2 Wm. & Mary Bus. L. Rev. 323 (2011)
Michelle Parthum, Note: Using Litigation to Address Violence in Urban Public Schools, 88 Wash. U. L. Rev. 1021 (2011)
Veronica Percia, Note: Sex Equality's Unnamed Nemesis, 18 Mich. J. Gender & L. 113 (2011)
Juan Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 Ohio St. L.J. 95 (2011)
Shaili Pezeshki, Comment: The FMLA and its Shortcoming: Can Your Supervisor Wrongfully Terminate Just Because You Work in a Public Agency? 40 Sw. L. Rev. 551 (2011)
Juli Ponce, Affordable Housing as Urban Infrastructure: A Comparative Study from a European Perspective, 42/43 Urb. Law. 223 (2010/2011)
David, Robbins, et alia, Path of an Investigation: How a Major Contractor's Ethics Office and Air Force Procurement Fraud and Suspension/Debarment Apparatus Deal with Allegations of Potential Fraud and Unethical Conduct, 40 Pub. Cont. L.J. 595 (2011)
Jessica Scales, Comment: Tipping the Balance Back: An Argument for the Mixed Motive Theory under the ADEA, 30 St. Louis U. Pub. L. Rev. 229 (2010)
Ayelet Shachar, Earned Citizenship: Property Lessons for Immigration Reform, 23 Yale J.L. & Human. 110 (2011)
Michael Selmi, The Supreme Court's Surprising and Strategic Response to the Civil Rights Act of 1991, 46 Wake Forest L. Rev. 281 (2011)
Craig Senn, Fixing Inconsistent Paternalism under Federal Employment Discrimination Law, 58 UCLA L. Rev. 947 (2011)
Michael Serota & Michelle Singer, Comment: Maintaining Healthy Laboratories of Experimentation: Federalism, Health Care Reform, and ERISA, 99 Cal. L. Rev. 557 (2011)
Amy Siadak, Note: Contracting Health Insurance Exchanges: Improving Implementation with Lessons from the Past, 40 Pub. Cont. L.J. 867 (2011)
Diana Silva, Note: Land Banking as a Tool for the Economic Redevelopment of Older Industrial Cities, 3 Drexel L. Rev. 607 (2011)
Sydney Strickland, Note. A Policy-Based Solution to the False Claims Act's Faulty Incent Structure, 35 J. Legal Prof. 449 (2011)
Symposium: Law, Politics, Civil Rights, and Justice: The Health of a Nation: Is Health Insurance a Right or a Privilege? 2008-2009 J. Race, Gender & Poverty 1
Symposium: Twenty Years after the 1991 Civil Rights Act: What Does the Future Hold? 46 Wake Forest L. Rev. 185 (2011)
Benjamin Templin, Social Security Reform: Should the Retirement Age Be Increased? 89 Or. L. Rev. 1179 (2011)
David Vlink, Note. "Growing Pains" in Indiana Age Discrimination Law, 44 Ind. L. Rev. 627 (2011)
Rebeccah Watson, Note: Defending Paid Sick Leave in New York City 19 J.L. & Pol'y 973 (2011)
Ahmed White, Industrial Terrorism and the Unmaking of New Deal Labor Law, 11 Nev. L.J. 561 (2011)
Lynette Wilson & Michael Correll, Recent Developments in Fifth Circuit Employment Law, 43 Tex. Tech. L. Rev. 911 (2011)
Polina Zhong, Note. Pregnancy Leave and Seniority Systems under Title VII, 17 Cardozo J.L. & Gender 627 (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.
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