Labor Law Journal

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Labor Prof

Reply Brief in New Process Steel

Posted: March 6th, 2010, 8:52am EST by laborprof lpb

The employer's reply brief in New Process Steel has now been filed and you can click on the following link to Download New Process Reply Brief. You can get the opening brief here, and the NLRB's brief here. -JH
Unemployment Rate Unchanged

Posted: March 6th, 2010, 8:41am EST by laborprof lpb

The Department of Labor released its February unemployment figures yesterday, and the rate remained unchanged from the previous month at 9.7%. There were still 36,000 job losses in February, but that was a big improvement from the previous year's 650,000...
WARNS Institute June 24-25 at Louisville

Posted: March 6th, 2010, 8:19am EST by laborprof lpb

Ariana Levinson (Louisville) sends us a hold-the-date note for the annual Warns Institute. The 27th Annual Warns Labor & Employment Law Institute will be held on June 24 and June 25 at the Galt House in Louisville, KY. William Gould...
South Dakota Ballot Initiative Would Preempt EFCA

Posted: March 6th, 2010, 8:10am EST by laborprof lpb

Dennis Nolan sends along news that both houses of the North Dakota Legislature have approved a ballot initiative that, if approved by voters in November of this year, would require secret-ballot voting in union elections. The bill ostensibly would preempt...
Garden on Union Campaigns as Constitutionally Protected Speech

Posted: March 6th, 2010, 7:52am EST by laborprof lpb

Charlotte Garden (Georgetown) has just posted on SSRN her article Labor Values are First Amendment Values: Why Union Comprehensive Campaigns are Protected Speech. Charlotte presented this article at the Seton Hall Labor and Employment Scholars Forum in January. Here's the...
Women in the International Labor Market

Posted: March 5th, 2010, 4:03pm EST by laborprof lpb

The LERA Listserv, through the Cornell Institute of Workplace Studies (IWS) brings to my attention a new report from the International Labour Organization (ILO) on: Women in labour markets: Measuring progress and identifying challenges [5 March 2010].According to the IWS:...
Secunda on Captive Audience Meetings

Posted: March 5th, 2010, 8:04am EST by laborprof lpb

Paul Secunda (Marquette) has just posted on SSRN his article The Contemporary "Fist Inside the Velvet Glove": Employer Captive Audience Meetings Under the NLRA. The article is for the Florida International University Law Review symposium Whither the Board? The National...

Labor Center

COBRA Subsidy Extended Again

Posted: March 5th, 2010, 5:39am EST by Amelia

As predicted, the federal government extended the COBRA subsidy on March 2, 2010. The Temporary Extension Act of 2010 results in a continued COBRA premium subsidy to American workers who are unemployed through no fault of their own. In addition, the act extends the subsidy from 9 months to 15 months for many affected workers.

The COBRA subsidy extension applies to employees who are involuntarily terminated between September 1, 2008 and March 31, 2010.

Under a new provision of the COBRA subsidy, workers who are terminated involuntarily on or after March 2, 2010 are eligible if that termination follows a qualifying event that was a reduction of hours. The qualifying event must have occurred between September 2, 1008 and March 31, 2010. For example, if an employee’s hours were reduced in November 2009 and he is subsequently laid off after March 2, 2010, he will qualify for the COBRA premium reduction.

The current premium reduction lasts for 15 months and applies to employees who were laid off on or after February 17, 2009. Some of these employees have already had the COBRA subsidy for 9 months. For those employees, the new act allows for a 60-day “transition period” when the workers must be notified of the continued availability of benefits and given additional time to pay. Employers with questions about these requirements should consult the Frequently Asked Questions on the COBRA Premium Reduction Extension Provisions on the EBSA website at www.dol.gov/cobra.

Individuals who lost their subsidy and paid the full 100 percent premium for December 2009 should contact their plan administrator or employer sponsoring the plan to discuss a credit for future months of coverage or a reimbursement of the overpayment.

As with the previous COBRA premium reductions, employers must face a new round of worker notification.

Under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called COBRA, employees with group health insurance can continue coverage during periods of unemployment. Usually employees must pay 102% of the total monthly premium for their group health insurance, including any amount previously paid by the employer.

However, the COBRA premium reduction permits eligible persons to pay just 35% of the total premium. The employer pays the remaining 65%, and is reimbursed by the federal government when filing quarterly payroll taxes.

Federal Employment Law

COBRA Subsidy Extended Again (pdf).

Posted: March 5th, 2010, 12:00am EST

On March 2, 2010, the President signed the Temporary Extension Act of 2010, which, among other things, extends the 65% COBRA premium subsidy through March 31, 2010. The subsidy was originally provided through December 31, 2009, under the 2009 stimulus act (the American Recovery and Reinvestment Act or ARRA), and was previously extended through February 28, 2010, via the 2010 Department of Defense Appropriations Act. (For information regarding the original COBRA subsidy and the previous extension, please see our previous E*Bulletins from January 2010, March 2009, and February 2009).
ICE Issues Third Round of I-9 Notices of Inspection.

Posted: March 5th, 2010, 12:00am EST

On March 3, 2010, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Form I-9 Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws.

Labor Prof

Adding Value(s) to Employee Handbooks

Posted: March 4th, 2010, 8:30am EST by laborprof lpb

Michael Maslanka, over at Work Matters, explains that workplace cultures of the future will focus on autonomy and not rules. My modest suggestion for improving employee handbooks: Explain why a rule or policy is in the handbook and incorporate company...
BLS to Eliminate Labor Comparisons Program

Posted: March 4th, 2010, 8:20am EST by laborprof lpb

Al Goldman passes along this news from the Washington Post that the Obama Administration is planning to eliminate the International Labor Comparisons program which, according to the article, may be the most reliable source for international comparative data respecting such...

Federal Employment Law

The Model Employer CHIPRA Notice.

Posted: March 4th, 2010, 12:00am EST

Right on the heels of the COBRA subsidy and subsidy extension notices required as a result of the COBRA subsidy and its extension, here is yet another notice that employers with group health plans must send to their employees annually. On February 4, 2010, the Department of Labor issued a model notice for employers to use in drafting their annual Childrens Health Insurance Program Reauthorization Act (CHIPRA) notice. The model notice can be found at [www.dol.gov]
Section 1981 race discrimination claim cannot survive without a contractual interest as its basis.

Posted: March 4th, 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
Federal Courts in New York Continue to Enforce Arbitration Agreements.

Posted: March 4th, 2010, 12:00am EST

Many employee groups have been lobbying the federal government to limit employers ability to require mandatory arbitration for resolution of employment disputes. Jackson Lewis also has joined the debate (see Jackson Lewis Partner Testifies in Favor of Arbitration Before Senate Judiciary Committee). Even as the future of pre-dispute arbitration agreements is considered in the Legislature, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), and district courts within the circuit, continue to uphold and interpret such agreements expansively.
Linking Passion and Career: The Perils of Nonprofit Recruiting.

Posted: March 4th, 2010, 12:00am EST

The conventional wisdom on the campuses of elite universities used to be that the nonprofit sector could never compete for top job seekers against big-name Wall Street players like Goldman Sachs or consulting firms like McKinsey that promised a meteoric career path.
Stopgap Extension of COBRA Subsidies - Further Extension Likely.

Posted: March 4th, 2010, 12:00am EST

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (H.R. 4691), which includes a stopgap extension from March 1, 2010 through March 31, 2010 of eligibility for the COBRA subsidies that were originally part of the American Recovery and Reinvestment Act of 2009 (ARRA).1 The legislation also clarifies Congress intent that an employee who loses coverage as a result of a reduction in hours and later incurs an involuntary termination of employment is eligible to elect subsidized COBRA coverage.
Get Ready to File Your H-1B Visa Petitions on April 1, 2010.

Posted: March 4th, 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 who want to hire a foreign worker to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree or the equivalent.
COBRA Subsidy Extended Until March 31, 2010.

Posted: March 4th, 2010, 12:00am EST

On March 2, 2010, President Obama signed legislation that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days. The Temporary Extension Act of 2010, H.R. 4691, extends the eligibility date for the COBRA subsidy from February 28, 2010 to March 31, 2010. The ARRA permits "assistance eligible individuals" to receive a 65% subsidy of the COBRA premiums they would be required to pay for any group health plan in which they participated at the time of their termination.
Staying Out Of The EEOC's Line Of Fire.

Posted: March 4th, 2010, 12:00am EST

The last place you want to see your company listed is on the EEOC's website under "Press Releases." Hospitality employers continue to make this list with reports of high-dollar settlements of discrimination and harassment allegations.
Off-Duty Discussion Groups Can Be Off-Limits to Employers.

Posted: March 4th, 2010, 12:00am EST

There is an inherent tension between an employee's right to privacy and an employer's right to monitor an employee's conduct especially where the employer believes that the conduct may harm its business or otherwise subject it to liability. This tension has only grown with the rapid expansion of social media and the larger audience with which an employee may share his grievances.
Cobra Subsidy Extended Through March 31, 2010.

Posted: March 4th, 2010, 12:00am EST

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (H.R. 4691), which amends the American Recovery and Reinvestment Act of 2009 (ARRA). Among other things, the Act extends eligibility for the 65%, 15-month COBRA premium subsidy to individuals who have been involuntarily terminated through March 31, 2010. Without the extension, employees laid off after February 28th would have been ineligible for the subsidy. The law is retroactive, so individuals who were involuntarily terminated on March 1st and 2nd are eligible for the subsidy.

Labor Prof

Solis Hints at Becker Recess Appointment

Posted: March 3rd, 2010, 3:58pm EST by laborprof lpb

Today, at the AFL-CIO annual meeting, Secretary of Labor Hilda Solis hinted at an impending recess appointment of Craig Becker to the NLRB. It had been looking like that might not happen, but unless Solis was trying to tick off...

Labor Center

Rhode Island Discrimination Law

Posted: March 3rd, 2010, 5:12am EST by Derrick

A recent change to the Rhode Island discrimination law means that an employer can be sued three years later, if an employee feels he or she has been the victim of discrimination. The new law goes into effect immediately.

Under the previous law, there was a one-year statute of limitations on employment discrimination.

The Rhode Island legislature passed the amendment over Governor Donald Carcieri ‘s veto.

The Rhode Island Civil Rights Act prohibits discrimination based on color, race, religion, disability, sex, age or national origin. It outlaws employment discrimination and retaliation.

This extension overturns a Rhode Island Supreme Court ruling in Horn v. Southern Union, which established a one-year statute of limitations.

This law is enforced by the Rhode Island Commission on Human Rights, based in Providence. The agency, established in 1949, is one of the oldest such commissions in the nation.

The Rhode Island Fair Employment Practices Act still requires that lawsuits be filed within one year. Since the two laws overlap, the Governor vetoed the extension. However, the Rhode Island General Assembly overrode that veto.

“There are many reasons a person may not be ready to file suit within one year,” said Rep. Donna Walsh, one of the bill’s sponsors. “Victims may fear the ordeal or a backlash. A victim may not be aware of his or her rights and neglect to file immediately.”

Rep. Walsh added, “There is no reason to give discrimination victims less time to file a suit than is given for other types of lawsuits.”

This law makes it even more important that Rhode Island employers preserve all employment records for at least three years, including information on hiring, pay and termination.

In addition to issues of sexual harassment and employment discrimination, this law also covers fair housing and the ability to enter into contracts.

Labor Prof

Favorite Labor/Employment Blogs

Posted: March 2nd, 2010, 3:55pm EST by laborprof lpb

Last week, I asked readers to list their favorite labor/employment blogs. Here, in alphabetical order, they are. Feel free to add additional favorites to the comment section. Happy reading! rb . Adjunct Law Prof Blog, Charlies Train Law blog Connecticut...
Facebooking Profs

Posted: March 2nd, 2010, 3:27pm EST by laborprof lpb

Students aren't the only ones who can post inappropriate material on facebook and other social media sites. According to the article Not So Private Professors in Inside Higher Ed, a sociology professor was placed on administrative leave last week after...
Developments in NAACP v. North Hudson

Posted: March 2nd, 2010, 11:42am EST by laborprof lpb

Apparently, developments have overtaken my post of a couple of hours ago. Although the issue remains a live one, the Third Circuit yesterday sent the North Hudson case back to the district court. [www.ca3.uscourts.gov] The purpose of the remand is...
Hispanics vs. Blacks in the Disparate Impact Wars

Posted: March 2nd, 2010, 8:42am EST by laborprof lpb

There has been some commentary on the possible effects of Ricci where different racial minorities' interests may come into conflict. Kerri Stone explores an aspect of this in terms of transferred intent for disparate treatment cases on her blog on...

Federal Employment Law

In Hertz v. Friend, the U.S. Supreme Court Clarifies the Path to Federal Courts.

Posted: March 2nd, 2010, 12:00am EST

By its unanimous decision in Hertz v. Friend,1 the U.S. Supreme Court has made it more likely that a company sued in state court in a state other than where its headquarters and center of direction, control, and coordination are located, will be able to remove the case from state to federal court in that jurisdiction.
Document Retention Vs. Document Creation: Which Is More Important?

Posted: March 2nd, 2010, 12:00am EST

For many years, wage-discrimination claims brought under Title VII have not been prevalent. In fiscal 2009, only 1% of charges filed with the EEOC included an Equal Pay Act claim. In lawsuits, wage-discrimination claims are normally seen only as an appendage to termination claims. This may be because wage differentials often are small and do not create significant monetary damages. For example, a $1.00 an hour wage differential will create only $2000.00 in economic damages each year. That may now change.