Labor Law Journal

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Labor Prof

9th Cir. First Amendment/Labor Law Heading to En Banc Review

Posted: March 16th, 2010, 1:00pm EDT by laborprof lpb

Ask and ye shall receive. In this case, that means my wishes were granted in the Ampersand case where I argued a panel of the Ninth Circuit ruled inappropriately that granting a 10(j) injunction would cause First Amendment speech and...
DOL Seeks to Define "Green Jobs" for Regulatory Purposes

Posted: March 16th, 2010, 11:57am EDT by laborprof lpb

The Department of Labor's Bureau of Labor Statistics (BLS) is soliciting comments on its proposed definitions of environmentally friendly “green jobs” in advance of its first collection of data on those jobs. A notice of proposed rulemaking willl be in...

Federal Employment Law

GETTING TO KNOW GINA.

Posted: March 16th, 2010, 1:00am EDT

Theres a new kid on the block in the anti-discrimination arena, and her name is GINA. Employers should already be familiar with long-standing federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), which prohibit employment decisions made on account of applicants and employees race, color, national original, religion, gender, age and disability. GINA, the Genetic Information Nondiscrimination Act of 2008, now extends these same protections to the protected category of genetic information.
Don't Let "March Madness" Take Over Your Workplace.

Posted: March 16th, 2010, 1:00am EDT

The National Collegiate Athletic Association (NCAA) has announced the 65 college teams participating in its 2010 Mens Division I Basketball Championship. This begins the nearly three-week single-elimination tournament that takes place mainly during March. It is appropriate now to consider the potential effect the basketball tournament may have on the workplace.
OSHA Lists Workplaces with High Injuries and Illnesses.

Posted: March 16th, 2010, 1:00am EDT

The Occupation Safety and Health Administration has released a list of about 15,000 workplaces with the highest numbers of injuries and illnesses in the nation for their industries, based on OSHAs most recent survey. The agency stated it has sent a letter to these workplaces urging prompt attention to this issue, along with copies of their injury and illness data and a list of the most frequently cited OSHA standards for their specific industry.
Paycheck Fairness Act Would Negatively Impact Businesses, Jackson Lewis Partner Cautions.

Posted: March 16th, 2010, 1:00am EDT

Jackson Lewis Partner Jane McFetridge presented a compelling case to the U.S. Senate Committee on Health, Education, Labor and Pensions that proposed pay equity legislation could further harm employers already reeling from the ongoing economic crisis. Ms. McFetridge, Managing Partner of the firms Chicago office, was one of six witnesses to offer testimony during the Committees March 11th hearing on the pending Paycheck Fairness Act (S. 182), a measure that would fundamentally change the Equal Pay Act of 1963 (EPA), exposing employers to far greater liability than they face now.
Third Circuit Holds that Medical Evidence and Lay Testimony Combined May Be Sufficient to Establish a Serious Health Condition Under the FMLA.

Posted: March 16th, 2010, 1:00am EDT

The U.S. Court of Appeals for the Third Circuit recently ruled in Schaar v. Lehigh Valley Health Servs., Inc., et al., 2010 WL 825257 (3d. Cir. 2010), that a combination of medical evidence and lay testimony can establish a question of material fact as to whether an employee has a "serious health condition" under the Family and Medical Leave Act ("FMLA"). In doing so, the Third Circuit adopted a middle-ground approach in a growing split among the courts that have addressed this question.

Labor Prof

More Reasons to Take Down that Facebook Page

Posted: March 15th, 2010, 3:10pm EDT by laborprof lpb

Mitch Rubenstein at Adjunct Law Prof Blog has an interesting post about a study concerning online reputation and job consequences that Dan Solove at Concurring Opinions elaborates on. Mitch asks about employment discrimination while Dan focuses on privacy and process...

Federal Employment Law

IRS Screens for Payroll, Compensation and Plan Audit Candidates with New Forms, Questionnaires.

Posted: March 15th, 2010, 1:00am EDT

Tax compliance means revenues for the federal government that is axiomatic. Revenue leakage through non-compliance has a multi-billion dollar effect on federal revenue. The Internal Revenue Service has become aggressive in setting its sights on several significant leaks in the system. These areas of concern include:
Senate Approves COBRA Subsidies and Unemployment Benefits Extensions through 2010.

Posted: March 15th, 2010, 1:00am EDT

By a 62-36 vote, the U.S. Senate has approved a tax extender package (H.R. 4213, Tax Extenders Act of 2009) that contains an extension of tens of billions of dollars in tax breaks and other provisions aimed at creating jobs. The bill also provides extensions through December 31, 2010, of health insurance subsidies for unemployed workers under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and emergency unemployment insurance benefits.
Certain Federal Contractors Cannot Require Pre-Employment Pre-Dispute Arbitration Agreements.

Posted: March 15th, 2010, 1:00am EDT

The Department of Defense (DoD) has implemented the Franken Amendment, prohibiting certain defense contractors that receive DoD Fiscal Year (FY) 2010 funds from mandating pre-dispute arbitration agreements as a condition of employment.
Social Media and Long Term Care Facilities: Considerations for Employers and Employees.

Posted: March 15th, 2010, 1:00am EDT

Long term care facilities should consider implementing a social media policy to establish clear guidelines for appropriate use, prevent and mitigate facility-damaging postings and clearly delineate patient information protected by Health Insurance Portability and Accountability Act (HIPAA). The policy, and the consequences of violating it, should also be clearly communicated to all employees. At a minimum, a good social media policy should include the following:
OSHA's New Recordkeeping Program: Are You Ready?

Posted: March 15th, 2010, 1:00am EDT

Most employers are required to fill out OSHA 300 Logs, which are used to classify work-related illness and injuries. Once an incident occurs, the employer must enter into the log the details of the illness/injury of how and what happened. Employers must keep the log (and summary) for each establishment or site where they have employees. Within seven days of learning the information about the incident, the employer must record any such work-related illness/injuries resulting in:
New FTC regulations affect employees' use of social media (pdf).

Posted: March 15th, 2010, 1:00am EDT

Recently, the Federal Trade Commission (FTC) issued regulations affecting nearly every business ¯ at least every business with a workforce that has computer access (either on or off working time).

Labor Center

Limits on California Kin Care

Posted: March 12th, 2010, 8:12pm EST by Cara

The California Supreme Court recently ruled that employees are not entitled to unlimited time off to care for family members who are ill.

Under the California Kin Care law implemented in 1999, employers that offer accrued sick leave to workers must allow employees to use up to half their annual total to care for a spouse, child, parent or domestic partner who is ill.

Then as now, there is no requirement under the law that any California employer must provide sick leave to employees. However, for employers who choose to offer this benefit, the law addresses how it may be used.

In a rare unanimous ruling, the court found that the California Kin Care law applies only when a company awards a specific amount of sick leave, and that sick leave can be accrued.

The trend among some larger companies is to offer employees unlimited sick leave, especially under certain collective bargaining agreements.

Applauding the victory for California employers, attorney Anthony Oncidi noted that the law was a “perfect example” of a well-meaning law that resulted in abuse by employees. He noted that many California companies had actually reduced or eliminated sick leave policies, due to the previous restrictions.

In the test case involving telephone company AT&T, Inc., the employer provided up to 5 days of paid sick leave for a legitimate illness in any 7-day period. The sick leave period reset each time the employee returned to work, under a collective bargaining agreement. Employees who were off more than one week were eligible for short term disability, and employees could be disciplined for excessive absenteeism.

The employer argued that since sick leave was basically unlimited, it was excessive to expect the company to grant half of the sick leave to an employee taking care of a sick relative. That would theoretically result in unlimited time off to care for relatives, under the law.

Initially, the trial court agreed with the employer, but that was overturned on appeal. The California Supreme Court again found for the employer. In the majority opinion, Justice Carolos Moreno noted that if the court did not limit the law, it would permit an employee to claim as kin care much more time off than the employee would be entitled to personally.

Labor Prof

Recent Issue of SSRN Abstracting Journal: Economic Perspectives on Employment & Labor Law

Posted: March 12th, 2010, 10:00am EST by laborprof lpb

The most recent issue of the SSRN abstracting journal, Economic Perspectives on Employment and Labor Law is out and includes another great article by friend of the blog, David Yamada. Here's the table of contents: Program Take-Up Among CalWORKs Leavers:...
Exhibit A: Federal Courts Don't Understand Labor Law

Posted: March 12th, 2010, 9:56am EST by laborprof lpb

My good friend, Rick Garnett (Notre Dame) has posted on Prawfsblawg an entry entited: The "Institutional" First Amendment. In the post, he discusses the Ninth Circuit's recent decision in McDermott v. Ampersand Publishing (9th Cir. March 11, 2009). The Central...

Federal Employment Law

Time to File H-1B Visa Petitions!

Posted: March 12th, 2010, 12:00am EST

On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a popular choice for companies planning to hire a foreign worker to fi ll a professional or specialty occupation position requiring a minimum of a bachelors degree or the equivalent.

Labor Prof

The 2010 Retirement Confidence Survey: Confidence Stabilizing, But Preparations Continue to Erode | EBRI

Posted: March 11th, 2010, 3:43pm EST by laborprof lpb

20TH ANNUAL RCS: The 2010 Retirement Confidence Survey—the 20th annual wave of this survey—finds that the record-low confidence levels measured during the past two years of economic decline appear to have bottomed out. The percentage of workers very confident about...
Leong on Judicial Erasure of Mixed-Race Discrimination

Posted: March 11th, 2010, 11:27am EST by laborprof lpb

Nancy Leong (starting at William & Mary Law this Fall) has just posted on SSRN her forthcoming piece in the American University Law Review: Judicial Erasure of Mixed-Race Discrimination. Here is the abstract: Jurisprudential remedies for racial discrimination presume the...
Wagner Competition Begins

Posted: March 11th, 2010, 8:27am EST by laborprof lpb

Best of luck to all competing in New York Law School's 34th Annual Robert F. Wagner National Labor and Employment Law Moot Court Competition. The competition begins today. rb
Tucker & Fudge: There IS a Constitutional Right to Strike

Posted: March 11th, 2010, 8:22am EST by laborprof lpb

Eric Tucker (York - Osgoode Hall) and Judy Fudge (Victoria) have just posted on SSRN their article (forthcoming Canadian Labour and Employment L.J.) The Freedom to Strike in Canada: A Brief Legal History. Here's the abstract: In the B.C. Health...

Federal Employment Law

Section 1981 Race Discrimination Claim Cannot Survive Without a Contractual Interest as its Basis.

Posted: March 11th, 2010, 12:00am EST

Under certain circumstances, 42 U.S.C. §1981 (Section 1981) creates a federal cause of action for individuals claiming intentional racial discrimination. To support such a claim, a plaintiff must allege that he is a member of a racial minority, and that he was discriminated against within a particular group of activities set forth in the statute. Those activities include the right to make and enforce contracts . . . as is enjoyed by white citizens. The 11th U.S. Circuit Court of Appeal recently dismissed the claims of a physician who claimed that the suspension of his medical staff privileges violated rights protected by Section 1981, holding that such privileges did not constitute contractual rights as defined by the statute.
COBRA Subsidy Extended and Modified.

Posted: March 11th, 2010, 12:00am EST

Newly-enacted legislation extends and expands the 65 percent federal COBRA subsidy under the American Recovery and Reinvestment Act (ARRA) in cases of involuntary termination of employment. A stopgap measure signed into law on March 2 by President Barack Obama extends the end of the eligibility period from February 28 to March 31, 2010, and makes other longer-lasting changes to the year-old subsidy arrangement. These changes include:
I-9 Inspections Likely for Louisiana and Mississippi Employer.

Posted: March 11th, 2010, 12:00am EST

On March 2, 2010, the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") agency announced that it is issuing notices of inspection to review the hiring records of 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. The notices alert business owners that ICE will inspect their I-9 forms and other hiring records to determine whether the employer is in compliance with employment eligibility verification laws and regulations.
Expansion on Availability of Investment Advice.

Posted: March 11th, 2010, 12:00am EST

The Pension Protection Act of 2006 (PPA) created a new statutory exemption from the prohibited transaction rules to expand the availability of investment advice to participants in 401(k)-type plans and individual retirement accounts, as long as certain safeguards and conditions were met. The Department of Labor, in the March 2, 2010 Federal Register, included a proposed rule to implement these provisions, thus making investment advice more accessible to many retirement plan participants.

Labor Prof

11th Circuit Orders Rehearing for another Sex Harassment Case

Posted: March 10th, 2010, 3:44pm EST by laborprof lpb

You may remember that the Eleventh Circuit issued a somewhat surprising decision recently on rehearing in a sexual harassment case, (noted here). That case involved a workplace saturated with graphic discussions of sex and derogatory language about women, although the...

Labor Center

Arkansas Safety and Health Conferences 2010

Posted: March 10th, 2010, 5:39am EST by Jolie

The Arkansas Department of Labor recently announced the schedule of health conferences for 2010.

The agency schedules annual worker safety conferences. There are separate conferences for public and private employers. The conferences focus on worker safety and compliance including improving safety for teen workers. Initial findings show that fatal workplace accidents were down in 2009, due in part to increased safety awareness by employers, including those who attended conferences.

For private employers including businesses, the first 2010 Arkansas Safety and Health Conferences was held on February 25 in Little Rock. Additional conferences will be held in Pine Bluff on March 25, in Russellville on May 6 and in Ft. Smith on May 12.

For the summer, Arkansas Health Conferences are scheduled in West Memphis on June 10, El Dorado on July 22, Bentonville on August 12 and in Ashdown on August 19.

Fall conferences are scheduled in Jonesboro on September 9, in Batesville on October 7, and in Hope on October 14. The final conference of the year for private employers is in Blytheville on October 28. Contact Judy Harwell at 501-682-9092 to register, or for more information on conferences for private employers.

For public employers including state and municipal government agencies, 10 Health Conferences are scheduled. They will take place in Johnson on March 10, in Hot Sprints on March 18, in West Memphis on March 22, in Dermott on April 8 and in Jonesboro on May 19.

Summer conferences for employers in the public sector will be held in Mena on June 17, and in Bella Vista on August 5. In the fall, conferences will be held in hope on September 9, in Forth Smith on September 22 and in North Little Rock on October 20.

Contact Kevin Looney at 501-682-4521 for information concerning the Public Sector Conferences.

Federal Employment Law

20 Ways Your Independent Contractor Might Be An Employee.

Posted: March 10th, 2010, 12:00am EST

Last month, the IRS began its first comprehensive audit of employment tax issues in over 25 years. The IRS will audit 6000 companies in total over the next three years. The main issues to be examined in these audits are worker classification, executive compensation and taxable fringe benefits. (For a broad discussion of all of these issues, please see our prior alert "IRS Will Audit 6,000 Companies Make Sure Your Employment Taxes Are in Order.") Because worker classification will garner more scrutiny than any other issue in these audits, this alert focuses solely on worker classification and the factors involved in making an accurate determination.
Employee Taxes Audit -- Is Your Company Ready?

Posted: March 10th, 2010, 12:00am EST

This article, authored by GJ Stillson MacDonnell, a shareholder in Littler's San Francisco office, discusses the Internal Revenue Service's National Research Program and the implications for companies. Included in the article are steps that employers can take to ensure preparedness for the potential assessments.