Workplace Law Report Index-Summary

CAA

CALIFORNIA

– Class arbitration waiver

– – Bar on seeking civil penalties on behalf of other employees unconscionable, unenforceable (Cal. Ct. App.), 391
– – Pizza delivery drivers not required to arbitrate class claims, pact, waiver unenforceable (Cal. Ct. App.), 427

– Disability bias, UPS, hearing-impaired driver applicants' class claims settled with new standard between DOT threshold and zero (N.D. Cal.), 835
– Environment, ports of Los Angeles, Long Beach clean-trucks program barring independent contractor drivers likely unconstitutional, preempted (9th Cir.), 433
– Healthy San Francisco, fair share ordinance not governed by or related to ERISA, no preemption, en banc review denied (9th Cir.), 355; bid for emergency stay to block pay-or-play law denied (U.S.), 481
– Labor legislation, 2008, DOL reports, 236
– Labor-management relations, San Francisco experience touted as progressive blueprint for labor standards, city's reforms, advances discussed, 54
– MSPA, dairy workers “seasonal” because business slows in summer months, FLSA, Cal. wage, breaks claims advance (E.D. Cal.), 345
– Organizing, Senate clears bill modeled on EFCA creating card check procedures for farmworkers, 615
– Privacy, reasonable expectation, auditing text messages on police sergeant's department-issued pager 4th Amend., Cal. violation, rehearing denied (9th Cir.), 152
– State actions summary, 25; 89; 163; 294; 367; 445; 529; 645; 716; 783; 851
– Unemployment insurance, UI benefits extended by 20 weeks, In Brief, 617
– Wage and hour

– – Living wage, rule tying application of Los Angeles ordinance to minimum number of hours worked under city service contracts invalidated (Cal. Ct. App.), 145
– – Minimum wage, plaintiffs using pseudonym “4 Exotic Dancers” must reveal names to sue under FLSA, Cal. law (C.D. Cal.), 192
– – Overtime

– – – Pharmaceutical salespersons exempt under FLSA, Cal., N.Y. laws (S.D.N.Y.), 109
– – – “Selling,” “obtaining orders” not defined, question certified to high court whether pharmaceutical sales reps subject to outside sales or administrative exemption (9th Cir.), 627

– – Prevailing wages, landscaping firm qualifies as “employer,” fired workers seeking class status may sue under federal, state law (C.D. Cal.), 540
– – Tip pooling among Starbucks baristas, shift supervisors, and “shift leads” lawful, $105M restitution order reversed, appeal planned (Cal. Ct. App.), 761

– Workers' compensation, court withdraws ruling that state labor code guarantees additional benefits for overtime work performed in-state by nonresidents, seeks clarification from high court (9th Cir.), 252

CARPENTERS (UBC)

– Chicago Reg. Council, arbitrator improperly awarded roofer damages for “most favored nations” clause violations occurring after pact expiration (N.D. Ill.), 670
– Fluor Daniel, back pay, damages for rejected salts calculable under Oil Capitol evidentiary standards, no extraordinary circumstances shown, bid for reconsideration rejected (NLRB), 259
– Local 2316, ULP, decertification petition tainted by unlawful employer assistance, order to recognize, bargain justified (NLRB), 197
– Southeastern Reg. Council, secondary boycott, subcontractor wins $1.7M verdict for union threats, coercion to prevent 3d parties from dealing with firm (N.D. Ga.), 258

CASH BALANCE PLANS

– ERISA, remedies, failure to use whipsaw calculation was statutory violation, but $46M remedy based on civil enforcement provision upheld (U.S., rev den), 79

CASINOS

– TYAD d/b/a Playground Lounge & Casino, minimum wage, exotic dancers misclassified as independent contractors owed back pay, penalties, reimbursement of “stage fees” (Mont.), 735

CHAMBER OF COMMERCE, U.S.

– E-Verify, final DOL rule mandating use by federal contractors postponed in wake of Chamber lawsuit, 77; postponement extended until May 21, 156

CHEMICAL INDUSTRY

– Chevron Phillips Chem., ADA, chronic fatigue syndrome, EEOC pretext, accommodation claims revived (5th Cir.), 801
– DuPont, ERISA, beneficiary disputes, barring waiver under valid QDRO, “plan documents” rule governs outcome, benefits properly paid to ex-wife (U.S., aff), 158; text, 173
– DuPont, grievance arbitration required where unilateral changes made to collectively bargained USW benefits (2d Cir.), 637
– Pharmaceuticals

See PHARMACEUTICAL INDUSTRY

– U.N. globally harmonized labeling system (GHS), chemical hazard communication

– – Material Safety Data Sheets (MSDS) studies analyze flaws, challenge OSHA proposal, 124
– – OSHA sends revisions, notice of proposed rulemaking to OMB for review, 775

– W. Va., industrial accident reporting rule adopted, In Brief, 823

CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD (CSB)

– Combustible Dust Explosion and Fire Prevention Act

See LEGISLATION, FEDERAL, HR 849

CHILD CARE

– Breastfeeding Promotion Act

See LEGISLATION, FEDERAL, HR 2819

– FLSA, in-service general training not employer-specific, voluntary after-hours program not compensable, Wage and Hour Op. Letter, 361; text, 372

CHILD LABOR

– Cooperative agreement applications, ILA seeks comments on past solicitations for education projects, In Brief, 396
– State labor legislation, 2008, DOL reports, 236

CITATIONS

– Penalty

See PENALTIES

CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

– E-Verify system

See EMPLOYMENT ELIGIBILITY VERIFICATION

– H-1B visa program, certification, TARP recipients subject to new USCIS rules, forms to insure no U.S. workers displaced, 439
– I-9 form for new hires, acceptable identity documents, USCIS delays implementing rule, 203
– Visa programs

See VISAS

CIVIL RIGHTS ACT OF 1866

– Race and religious bias, retaliation, bank employee who signed four separate agreements must arbitrate state, federal firing claims (S.D.N.Y.), 223
– Race bias, §1981 does not grant implied right to sue public employer, §1983 of 1871 Act only recourse (3d Cir.), 193

CIVIL RIGHTS ACT OF 1871

– Age bias, ADEA exclusive remedy barring suit under §1983, but sovereign immunity bars ADEA suit, bid to amend complaint properly rejected (9th Cir.), 281
– Race bias, §1981 of 1866 Act does not grant implied right to sue public employer, suit under §1983 only recourse (3d Cir.), 193
– Witness intimidation, whistleblower fired for refusing to recant illegal hiring allegations, motion to compel upheld (U.S., rev grant), 161

CLASS ACTIONS

– ADA, UPS, hearing-impaired driver applicants' class claims settled with new standard between DOT threshold and zero (N.D. Cal.), 835
– ADEA, KAPL, RFOA affirmative defense waived, waiver not excused, RIFd employees' $4M class award reinstated (N.D.N.Y.), 700
– Class arbitration waiver, wage claims

– DPPA, UNITE HERE unlawfully accessed motor vehicle records to obtain workers' home addresses for organizing drive (U.S., rev den), 431
– ERISA, Huntington Bancshares, retention of stock investment option during subprime crisis no fiduciary breach (S.D. Ohio), 264
– ERISA, LMRA, retiree health care rights not vested, workers who were retirement-eligible when 1988 pact expired properly denied lifetime benefits (6th Cir.), 153
– FAA, arbitration of class claims allowable even where not expressly mentioned in contract (U.S., rev grant), 849
– FLSA

– – Hotel not required to pay recruitment, travel, visa expenses of temporary H-2B guest workers hired after Katrina (5th Cir.), 250
– – MSPA, dairy workers “seasonal” because business slows in summer months, FLSA, Cal. wage, breaks claims advance (E.D. Cal.), 345
– – Offer of judgment no bar to timely bid for certification of collective action relating back to filing date of initial complaint (5th Cir.), 40
– – T-Mobile, personal stake extinguished, workers who accepted offer of judgment on individual claims after certification denied in FLSA collective action lost standing to appeal that denial (9th Cir.), 833

– FLSA, TVPA, immigration status irrelevant to Indian guestworkers' right to sue shipyard alleging visa fraud, forced labor, human trafficking (E.D. La.), 549
– Misclassification, failure to withhold taxes, professional wrestlers' claims of unjust enrichment rejected, no private right to enforce tax code (D. Conn.), 317
– Missed meals and breaks, off-the-clock work, split shifts, five subclasses of FedEx drivers certified for class actions but three stayed (N.D. Cal.), 597
– Negligence, breach of contract, stolen laptop contained personal data on 97,000 Starbucks employees, class action filed (W.D. Wash.), 284
– Off-the-clock work

– – Eleventh Amend. no bar to bus driver's FLSA collective action against Pa. transit agency (U.S., rev den), 779
– – Wal-Mart

– – – Minn. suit, settlement of $54.25M, civil penalty approved (Minn. Dist. Ct.), 800
– – – Payment of up to $640M settles 63 pending state and federal suits, 5; $65M - $85M settlement of over 30 claims wins preliminary approval (D. Nev.), 764

– Ore., RLA no bar to state wage law suit, revived, “ordinary,” “complete” preemption distinguished (9th Cir.), 143
– Overtime

– – Family Dollar, FLSA, store managers not exempt executives, $35.6M judgment affirmed (11th Cir.), 8
– – Retaliation, TRO barring NYCPD internal affairs department from investigation or discipline related to officers' FLSA suit at issue, remanded for explanation (2d Cir.), 192
– – Staples, misclassification, unanimous jury awards $2.48M to assistant store managers, FLSA class action (D.N.J.), 316
– – Wal-Mart, payment of up to $640M settles 63 pending state and federal suits, 5; $65M - $85M settlement of over 30 claims wins preliminary approval (D. Nev.), 764

– Overtime, clothes changing, meal and rest breaks, Tyson Foods, no overlap, collective FLSA, Kansas claims advance (D. Kan.), 278
– Paycheck Fairness Act

See LEGISLATION, FEDERAL, HR 12

– Race bias, participation in certified class action tolls statute of limitations on individual Title VII claims, pay and promotions claims revived for UPS retiree (5th Cir.), 72
– Religious bias, Celestica, Muslin workers' varied prayer beliefs, accommodation requests lack commonality, certification denied (D. Minn.), 836
– RICO

– – FLSA, prevailing wages, landscaping firm qualifies as “employer,” fired workers seeking class status may sue under federal, state law (C.D. Cal.), 540
– – Intentional hire of illegal workers to drive down wages of legal workers, class certified (E.D. Cal.), 749

– Sex bias, Wal-Mart, en banc review ordered on certification of class potentially including over one million claimants (9th Cir.), 254; oral argument, attorneys clash over class certification, individual mini-trials (9th Cir., en banc), 428
– WARN Act, “faltering business” defense rejected, firm liable to workers fired with 6 days notice and workers who lost jobs at other sites (U.S., rev den), 480

CLEAN AIR ACT (CAA)

– DOL ARB decisions, briefly, 556

CLEAN WATER ACT (CWA)

– Whistleblowing, county sewer inspectors fired after noncompliance complaints to supervisors not protected under CWA or 1st Amend. (11th Cir.), 745

CLOTHES CHANGING

– Tyson Foods, no overlap, meat workers' collective FLSA, Kansas claims advance (D. Kan.), 278

CNMI

See NORTHERN MARIANA ISLANDS (CNMI)

COBRA

See CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA)

COLLECTIVE BARGAINING

– Bargaining, bias rights distinguished, arbitration ruling on CBA violation does not bar re-litigating issue in related ADA lawsuit (U.S., rev den), 293
– Employee Free Choice Act (EFCA)

See LEGISLATION, FEDERAL, HR 800, S 1041

– Professor/arbitrator urges substantive, procedural fixes for “pretty sick” NLRA, speakers debate need for reforms, Special Report, 846
– Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act

See LEGISLATION, FEDERAL, HR 2732, S 1184

COLLECTIVE BARGAINING AGREEMENTS

– Reorganizations, primary allegiance of bench is to bankruptcy code, not NLRA, speaker examines records, priorities, effects on labor claims, 337

COLORADO

– Collective bargaining rights for firefighters, bill vetoed, 822
– Designated beneficiary agreements, estate planning, administration law for unmarried persons summarized, 559
– Labor legislation, 2008, DOL reports, 236
– State actions summary, 25; 163; 238; 367; 529; 645; 716; 783; 851
– UI benefits for locked-out workers, bill heads to governor for signature, 687

COMMISSIONS

– FLSA

– – Insurance agents may be subject to outside sales or administrative exemptions, depending on duties, form of pay, Wage and Hour Op. Letter, 441; text, 451
– – Overtime, marketing executive paid commissions exempt outside salesperson under FLSA despite never closing a sale (11th Cir.), 191

COMMUTING

– Bicycle commuting reimbursement new fringe benefit under Bush bailout, 123

COMPENSATORY TIME

– EEOC willfully violated FLSA by requiring employees to take compensatory time instead of overtime pay for excess hours worked (Arb., FMCS), 467
– Family-Friendly Workplace Act

See LEGISLATION, FEDERAL, HR 933

– FLSA dictates Chicago police officers must get leave within reasonable time unless operations unduly disrupted (7th Cir.), 507

COMPUTERS

– Agere Sys., ADA, RIFd supervisor lawfully awarded additional amount for taxes on lump-sum back pay, “make-whole” remedy upheld (3d Cir.), 222

CONFERENCES AND MEETINGS

– AFL-CIO Executive Council, winter meeting, 330
– AFSCME Nurses Congress, 640
– Am. Council on Intl. Personnel, 844
– American Bar Association (ABA)

– – Committee on Development of the Law under the NLRA, 336; 337
– – EEO law, national conference, 523; 526
– – Employment Rights and Responsibilities, midwinter meeting, 482; 483; 484
– – FMLA rules teleconference, 69

– Calendar, 30; 180; 306; 498; 618; 754; 896
– Labor and Employment Relations Ass'n, 54; 54; 75

CONFIDENTIALITY

– Electronic data

See DATA SECURITY

– Nurse's aide lawfully fired for providing unredacted patient records to EEOC as proof of race bias (U.S., rev den), 333
– Privacy

See PRIVACY

– Temporary agency's discharge of worker for violating overly broad confidentiality provision unlawful, NLRB 2-member ruling upheld (1st Cir.), 383

CONFLICTS OF INTEREST

– ERISA

– – Benefits termination by dual role administrator, deferential review proper, conflict only one factor to be considered (4th Cir.), 18
– – Evidence of plan bias admitted outside administrative record properly viewed in light most favorable to participant (9th Cir.), 117

CONGRESS, U.S.

– House Education and Labor Committee, GOP members announced, 78
– Senator Arlen Specter (Pa) switches from GOP to Democratic party, but reiterates opposition to EFCA, 610

CONNECTICUT

– Equal protection, reverse race bias, disparate impact clash, New Haven firefighters' promotion test results twice scrapped because too few minorities passed (U.S., rev grant), 67; (oral arg), 565
– Labor legislation, 2008, DOL reports, 236
– Same-sex marriage, state law developments may require some changes by employers, attorneys discuss benefits impact, tax status consequences, other pitfalls, 612
– State actions summary, 238; 529

CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA)

– American Recovery and Reinvestment Act (ARRA) subsidy

– – Appeals process for denials of premium subsidies, DOL seeks comments, 845
– – DOL issues guidelines for appealing denials of subsidies, 752
– – Expanded eligibility, DOL releases online FAQs, In Brief, 331
– – Model notices, FAQs on premium subsidy released by DOL, overview, 440

– Furloughs driven by economic downturn may negatively impact employee benefits, practitioners advise, 815

CONSPIRACY

– EPA, DOJ fines total $8M for safety, Clean Air Act violations, conspiracy, blocking investigation, concealing accidents, pipe maker managers sentenced (D.N.J.), 606
– Peonage, conspiracy, visa fraud, document servitude, convictions, fines upheld for hotel owners who abused Filipino housekeepers (8th Cir.), 608

CONSTITUTIONAL RIGHTS

– Due process

See DUE PROCESS

– Equal protection

See EQUAL PROTECTION

– First Amendment

See FIRST AMENDMENT
– – Freedom of speech

See FREEDOM OF SPEECH

CONSTRUCTION INDUSTRY

– American Recovery and Reinvestment Act (ARRA)

See LEGISLATION, FEDERAL, HR 1

– Constr. & Design, visa denial upheld where no showing small firm could pay Ukrainian carpenter promised compensation (7th Cir.), 607
– Davis-Bacon payroll reports, DOL issues final privacy rule reducing personal data, partial identifier required, 22
– Federal construction, PLAs

– – Government Neutrality in Contracting Act

See LEGISLATION, FEDERAL, HR 983, S 90

– – Obama executive order revokes prior policy, summarized, unions, contractors comment, 224; text, 240

– Fidelity Interior Constr., secondary boycott, UBC slammed with $1.7M verdict for threats, coercion to prevent 3d parties from dealing with subcontractor (N.D. Ga.), 258
– Halpin Mechanical & Electrical, contributions owed to multiemployer plans not “assets” triggering ERISA fiduciary status, but debts dischargeable in bankruptcy (2d Cir.), 672
– Hoffman Elec., ADEA, eighty-year-old told she was “too old and crippled to work” raised jury issue, claim advances (S.D. Ga.), 430
– Md. penalizes contractors for independent contractor misclassifications under newly enacted law, 686
– Oil Capitol Sheet Metal, ULPs, back pay, union challenge to NLRB ruling assigning burden of proof to rejected union salt dismissed, unripe (D.C. Cir.), 512
– Overtime, “job” rates, flat sum based on labor bid, not hours worked, violates FLSA, Wage and Hour Op. Letter, 443; text, 456
– Parksite Group, NLRA Section 10(j), successor employer ordered to recognize IBT, hire predecessor's employees, rescind unilateral changes (D. Conn.), 150
– Paschall Elec., secondary boycotts, nonunion contractor's Ill. antitrust claims completely preempted by NLRA, federal cause of action substituted, dismissal reversed (7th Cir.), 544
– Prate Installations, arbitrator improperly awarded damages for UBC's “most favored nations” clause violations occurring after pact expiration (N.D. Ill.), 670
– Rapetti Rigging, manslaughter, criminally negligent homicide, owner, firm indicted for 7 fatalities in 2008 crane collapse (N.Y. Sup. Ct.), 50
– Rodin, reverse alter ego rejected, nonunion contractor not bound by pact with union contractor he helped, not shown to run dual shop (9th Cir.), 351
– Spurlino Materials, staffing, assignments, seniority, retaliation against pro-union workers, unilateral changes, failure to bargain in good faith for first contract ruled ULPs (NLRB), 545
– Summit Contractors, multiemployer worksite, OSHA may cite general contractors for hazardous conditions faced by subcontractors' employees, no conflict with “controlling employer” policy (8th Cir.), 328
– Underground Utils., prevailing wages, overtime, deposition queries about claimants' immigration, residency, citizenship status unlawful (N.J. Super. Ct.), 750
– U.S. Rebar, N.Y. crime victim restitution not merited where union local, benefit funds not “directly harmed” by construction official's criminal conspiracy (2d Cir.), 841
– Washington

– – Documents law requires plumbers, electricians, elevator workers to carry licenses and photo ID, 557
– – Prevailing wage laws enacted defining “independent contractor,” ensuring payment on public works contracts, 557

CONSTRUCTIVE DISCHARGE

– ADA, driving not major life activity, county nurse who resigned due to anxiety after car accident lacks disability, bias claims (7th Cir.), 598
– Immigration, liquor control violations, Jordanian banquet captain's complaint about Hispanic co-workers not job or public duty, demotion no public policy violation, verdict overturned (Ore. Ct. App.), 228
– Sex bias, stereotyping, male county employee forced to resign over unconfirmed sexual harassment complaint has triable claim for constructive discharge (2d Cir.), 738
– Sexual harassment

– – Fla. deputy sheriff who declined post failed to show promotions bias, constructive discharge (U.S., rev den), 81
– – Persistent verbal abuse, Title VII claim proceeds, but not retaliation or tort claims (M.D. Ala.), 44

CONSULTANTS

– Pegasus Consulting Grp., failure to pay H-1B worker's salary during idle period triggers back pay under INA, civil money penalty for “knowing” violation (DOL ARB), 684

CORRECTIONAL FACILITIES

– Cook County Sheriff's Dept., failure to investigate national origin harassment, correctional officer of Arab ancestry has triable claims (N.D. Ill.), 665
– Mass. DOC, state prison guard fired for close relationship with former inmate has no claim, specific approval requirement safeguards DOC security interest (1st Cir.), 354
– Minn., sex bias, retaliation complaint no shield against officer's discipline for prior insubordination, claim rejected (U.S., rev den), 131

CRIMINAL ACTIVITIES

See also VIOLENCE
– Assault of motorist, public policy bars arbitrator's reinstatement of “out-of-line” police officer (Mass. App. Ct.), 801
– Fraud

See FRAUD

– Identity theft

See IDENTITY THEFT

– N.Y., criminal arrest not proof of wrongdoing meriting discharge, NYC sanitation worker improperly fired while in police custody, reinstatement ordered upon dismissal of charges (N.Y. Sup. Ct.), 251
– N.Y., money laundering, crime victim restitution not merited where union local, benefit funds not “directly harmed” by construction official's criminal conspiracy (2d Cir.), 841
– Privacy Act, PBGC-17, new system proposed to protect records for law enforcement, 518
– RICO

See RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (RICO) ACT

– ULPs

See UNFAIR LABOR PRACTICES (ULPs)

– Undocumented workers

See UNDOCUMENTED WORKERS

CWA (CLEAN WATER ACT)

See CLEAN WATER ACT (CWA)