Workplace Law Report Index-Summary

DAMAGES

– Civil Rights Act of 2008

See LEGISLATION, FEDERAL, HR 2159, S 2554

– Compensatory, environmentalist who won whistleblower suit must pay federal tax on emotional distress and injury to reputation award (U.S., rev den), 577
– ERISA, fiduciary breach, 401(k) participant may sue for losses to plan assets in individual account due to failure to follow investment directions (U.S., rev), 257; text, 266
– FMLA, timely medical note wins liability verdict for engineer, but inability to return to work, failure to mitigate nixes damages, fees (7th Cir.), 1271
– Mass. wage law violations, bill allowing treble damages without willful misconduct requirement becomes law despite governor's failure to sign, 550
– Overtime, drive-in grocery “store managers” win claim, but jury award vacated due to improper instruction, remanded (11th Cir.), 400
– Restrictive covenants, ex-employee's noncompete liability affirmed, but $43M in damages insupportable, new trial ordered (U.S., rev den), 138
– Retaliation, SOX claimants have no statutory or constitutional right to jury trial, equitable remedies authorized, not monetary relief (N.D. Cal.), 472
– ULPs, mitigation, back pay claimants have burden to prove reasonable efforts to find work, NLRB issues guideline memo, 1339

DATA SECURITY

– Blogs, networking sites, web videos now generate many privacy disputes, speakers explore altered landscape, 1038

DAVIS-BACON ACT

– Fringe benefits, ERISA, criminal trial set for attorney who devised fund allowing N.Y. contractors to evade state, federal prevailing wage laws (E.D.N.Y.), 1278
– HOPE VI Improvement and Reauthorization Act

See LEGISLATION, FEDERAL, HR 3524

– Wage and Hour Div. enforcement, FY2007 set record high in back pay recovery, statistics reviewed, Special Report, 26
– Whistleblowers, DOL ARB decisions, briefly, 1382

DAY LABORERS

– Disclosure law, preliminary injunction barring release of registered employers' personal data upheld, writ denied (Cal. Ct. App.), 23
– Los Angeles, accommodation ordinance requiring home improvement stores to set aside space approved, 1172

DECERTIFICATION

– Coca-Cola Enters., employee's petition reinstated, MOU on distribution methods improperly ruled contract bar (NLRB), 1165
– Levy, explanation to strike replacements not coercion, new IUOE election not warranted (NLRB), 83
– UBC, recognition improperly withdrawn, but NLRA violations occurred after union had lost majority support, injunction denied (E.D. Va.), 1058
– UMW, recognition legally withdrawn, employees' statements, letter objective proof of majority-backed ouster (4th Cir.), 1056

DEFAMATION

– “Crappy” homes comment is protected opinion under 1st Amend., not assertion of fact, poem lampooning target of labor dispute not actionable (Ill. Ct. App.), 181
– Non-disparagement clauses in bias settlement, separation agreements, EEOC attorney warns of agency opposition, legal pitfalls, 548

DEFENSE CONTRACTORS

– Caltech Jet Propulsion Lab. (JPL), background checks enjoined for low-level NASA contractors due to constitutional, privacy concerns (9th Cir.), 85
– Halliburton, sexual harassment, mandatory arbitration pact valid, employee may not sue over “sexually lawless environment” on Iraq job (S.D. Texas), 190
– Innovative Techs., Ohio trade secrets law, firm awarded $23M for ex-employees' collusion with rival Advanced Mgt. Tech. (AMTI) (Ohio Ct. C.P.), 86
– Kellogg Brown & Root (KBR)

– – FCA, employment pact makes arbitration mandatory for drivers fired after complaining about security, maintenance of Iraq supply trucks (4th Cir.), 721
– – Fraud, Iraq risks misrepresented, civilian truck drivers' claims, improperly dismissed under political question doctrine, reinstated (5th Cir.), 778

– Michael Bianco, humanitarian concerns trigger DHS probe of Mass. ICE raid that stranded over 150 children, guidelines progress discussed, 126
– Serco, overtime, no outside sales exemption for civilian Army recruiters who find candidates but do not enroll (10th Cir.), 959
– Whistleblowers

See LEGISLATION, FEDERAL, HR 1585; LEGISLATION, FEDERAL, HR 4986

DEFENSES

– ADA, business necessity may justify UPS ban on deaf drivers, BFOQ ruling reversed, remanded for proof hearing standards linked to safety (9th Cir., en banc), 5
– ADEA, reasonable factors other than age (RFOA) exception is affirmative defense, employee has burden to disprove (U.S., rev grant), 133; government, RIFd workers urge reversal (oral arg), 557; employer bears both burden of production and burden of persuasion (vac, rem), 829; text, 863
– Ellerth-Farragher affirmative defense

– – Sexual harassment

See SEXUAL HARASSMENT

– – Use in wage and hour claims debated at ABA event, 1290

– EPA, export-import firm proved affirmative defense, education, experience accounted for pay disparity (S.D.N.Y.), 1309
– Maine Human Rights Act, disability-related safety risk is affirmative defense to be proved by employer (1st Cir.), 373

DEFERRED COMPENSATION

– ERISA

See ERISA

DELAWARE

– Prevailing wage measure enacted, In Brief, 228
– State actions summary, 1291

DELIVERY SERVICES

– ABX Air, illegal hiring to depress wages, RICO enterprise claim may proceed against executives, but not against firm and parent DHL Express (S.D. Ohio), 476
– Federal Express (FedEx)

– – ADA, $100K in punitive damages upheld over “reprehensible” failure to accommodate deaf package handler (4th Cir.), 151; reckless indifference standard properly applied, punitive award upheld (U.S., rev den), 1349
– – ADEA, limitations period, courier's EEOC intake questionnaire and affidavit seeking agency action to vindicate rights was timely claim equivalent to charge (U.S., aff), 283; text, 309
– – EEOC administrative subpoena may be issued to employer even after right-to-sue letter sent, suit initiated (9th Cir.), 1245
– – Independent contractor misclassifications

– – – IRS assessments, SEC filing discloses $319M fine, 50
– – – Nineteen separate classes of current and former drivers in as many states certified (N.D. Ind.), 461

– – Overtime, FLSA collective action approved, but parallel Pa. class action would undermine intent, rejected (M.D. Pa.), 290
– – Race bias, analysis of similarly situated employees “exceedingly narrow,” firing claims revived (6th Cir.), 363
– – Sexual harassment claimant failed to use preventative, corrective measures, affirmative defense defeats claim (6th Cir.), 934

– N.H., overtime, delivery drivers, sales merchandisers covered under new state law, 1040
– United Parcel Service (UPS)

– – ADA, business necessity may justify ban on deaf drivers, BFOQ ruling reversed, remanded for proof UPS hearing standards linked to safety (9th Cir., en banc), 5
– – AIR 21 retaliation, airplane mechanic's safety complaints triggering discipline too vague to merit whistleblower protection (DOL ARB), 511
– – Drug testing, driver in safety-sensitive position cannot sue for procedural violations of Okla. law, DOT standards control industry (10th Cir.), 806
– – Maine Human Rights Act, disability-related safety risk is affirmative defense to be proved by employer (1st Cir.), 373
– – Race bias, black manager who dated, married white hourly worker violated nonfraternalization policy, lawfully fired (7th Cir.), 630
– – Religious bias accommodation standard requires bilateral cooperation, not elimination of conflict, damages upheld despite improper jury instruction (8th Cir.), 81
– – Supply Chain Solutions, ERISA preempts state law claim over misrepresentation of eligibility for long-term benefits (1st Cir.), 911

DEPARTMENT OF

See specific departments

DISABILITY BENEFITS

– Age bias, EEOC may pursue claim that Ky. public workers unlawfully disqualified (U.S., oral arg), 39; service credits criteria lawful, disparity lies in timing, not calculations (U.S., rev), 830; text, 869
– Eaton Long-Term Disability Plan, ERISA, abuse of discretion review that failed to defer to plan administrator was improper de novo review, reinstatement of benefits reversed (4th Cir.), 52
– SMWIA industry-related disability (IRD) benefit is welfare benefit, not pension benefit, earnings cap amendment no ERISA anti-cutback violation (2d Cir.), 193; (U.S., rev den), 1352

DISABILITY EMPLOYMENT POLICY OFFICE (ODEP)

– DOL budget, FY2009, Bush administration proposal, cuts, 194
– Veterans, some spouses given priority for DOL services under proposed rule, 1168

DISABLED EMPLOYEES

– California

– – Association bias broader under FEHA than ADA, job applicant rejected due to friendship with disabled employee may sue (N.D. Cal.), 293
– – Lake County, failure to reinstate juvenile hall officer due to prior wrist injury, $1.7M jury award upheld (N.D. Cal.), 241

– Conn. law requires reasonable accommodation, interactive process, driver's bias and retaliation claims revived (Conn.), 580
– Maine Human Rights Act, disability-related safety risk is affirmative defense to be proved by employer (1st Cir.), 373
– N.J., resume fraud does not limit punitive, tort damages for hostile environment (N.J.), 773
– Ore., accommodation ruling against firm that fired medical marijuana user upheld (Ore. Ct. App.), 843
– Wash., question certified whether separation of powers doctrine bars retroactive application of expanded definition (9th Cir.), 1307
– Workers' compensation

See WORKERS' COMPENSATION

DISCIPLINE

– Political activities, discipline charges, NLRB guidance pending, 809

DISCLOSURE

– Employer information, release to 3d party barred due to conflict between EEOC policy and its own FOIA rules (D.C. Cir.), 930
– 401(k) Fair Disclosure for Retirement Security Act

See LEGISLATION, FEDERAL, HR 3185

DISCOVERY

– Emotional distress claimant's sexual abuse at 13 relevant to, admissible for diagnosis of present condition in sexual harassment claim (E.D. Tenn.), 1431
– FLSA, restaurant delivery personnel suing for minimum wage and overtime need not produce tax returns to show number of work hours (S.D.N.Y.), 463
– Medical review, state privilege protecting physician performance assessments does not apply in federal job bias cases (U.S., rev den), 61
– Privacy, data on all WGA members essential to fair resolution of age bias class claims, disclosure ordered (Cal. Ct. App.), 1157; talent agencies pay $4.5M to settle, 1184
– Representing undocumented immigrants, Natl. Empl. Lawyers Ass'n (NELA) attorneys address difficulties, offer tips, 979
– Work product privilege not waived by disclosure of report to EEOC, discovery barred (S.D.N.Y.), 933

DISPARATE IMPACT AND TREATMENT

– ADEA

– – Impact, RFOA, EEOC seeks comments on proposed rules update, 477
– – Reasonable factors other than age (RFOA) exception is affirmative defense, employee has burden to disprove (U.S., rev grant), 133; government, RIFd workers urge reversal (oral arg), 557; employer bears both burden of production and burden of persuasion (vac, rem), 829; text, 863
– – Rehire restrictions are employment policy subject to disparate impact analysis, EEOC statistics establish prima facie case (8th Cir.), 841
– – Untimely administrative claims sink disparate-treatment challenge to FAA salary bands, lump-sum payment (D.D.C.), 801

– ADEA, hospital workers fired for confidentiality breach fail to show pretext or disparity (6th Cir.), 1430
– Age bias, discovery, data on all WGA members essential to fair resolution of class claims, disclosure ordered (Cal. Ct. App.), 1157; talent agencies pay $4.5M to settle, 1184
– Race bias

– – Cat's paw theory of liability, $250K, training settles EEOC claim (D.N.M.), 564
– – City employee fired for setting off firecracker at work while comparators not disciplined awarded $120K (E.D. Tenn.), 43
– – Employer status, NYC teacher candidates may sue city for imposition of certification requirements, but not state (U.S., rev den), 916
– – Perceived sexual harassment policy violation lawful basis for firing based on employer's reasonable belief, prima facie proof immaterial (D.C. Cir.), 466

– Sex bias, female manager fired for denigrating bosses fails to show male comparator treated better (6th Cir.), 82

DISTRICT OF COLUMBIA

– Age bias, retaliation, investigation showed absentee hospital registrar lawfully suspended despite supervisor's alleged animus, reversed (D.C.), 1052
– Paid sick leave, City Council backs bill requiring for DC workers, 351
– Public Schools, ADA, failure to hire deaf applicant not bias where other applicants more qualified for IT job (D.C. Cir.), 690
– State actions summary, 29; 102; 384; 451; 514; 644; 783; 858; 948; 1011; 1200; 1232; 1291

DOMESTIC PARTNERS

– Marriage amendment to state constitution bars same-sex benefits for public employees (Mich.), 655
– Same-sex marriage, Cal. high court strikes down state ban (Cal.), benefits effects discussed, 694

DOMESTIC VIOLENCE

– Crime Victims Employment Leave Act

See LEGISLATION, FEDERAL, HR 5845

– Iowa, employee fired for summoning police to enforce protective order against co-worker may sue (N.D. Iowa), 632
– Wash., public policy protects victims from leave-related discharge (Wash.), 1402

DOMESTIC WORKERS

– Md., Montgomery County to enact law requiring written contracts, 1040

DONNING AND DOFFING

See CLOTHES CHANGING

DPPA

See DRIVER'S PRIVACY PROTECTION ACT (DPPA)

DRESS CODES AND GROOMING

– Religious bias, Jewish police officer has right to wear beard, but not yarmulke (D. Nev.), 1160
– Union buttons, hospital ban on nurses wearing Safe Staffing demand in patient areas was ULP, reversed, remanded to NLRB (9th Cir.), 691
– Workplace Religious Freedom Act

See LEGISLATION, FEDERAL, S 3628

DRIVERS

– Allan S. Goodman, disabilities, Conn. law requires reasonable accommodation, interactive process, bias and retaliation claims revived (Conn.), 580
– Drug and alcohol violations, disclosure to state licensing authorities may be lawful under DOT rule, In Brief, 853
– Five Star Transp., letter-writing campaign to protect job conditions protected activity, bus company's refusal to hire school bus drivers was ULP (1st Cir.), 500
– Overtime, N.H. delivery drivers, sales merchandisers covered under new state law, 1040
– Salvation Army, Rehabilitation Act claim revived for applicant taking psychotropic drugs, “record of impairment,” medical inquiry at issue (6th Cir.), 932

DRIVER'S PRIVACY PROTECTION ACT (DPPA)

– Union organizing not a permissible exception, UNITE HERE unlawfully accessed motor vehicle records to obtain workers' home addresses (3d Cir.), 1223

DRUG AND ALCOHOL ABUSE

– FMLA, alcoholic worker not covered for absences before treatment began, firing lawful (7th Cir.), 73
– Safety and health, claim revived for meat plant manager discharged after complaining about impact of owner's meth-addicted son on plant safety certification (Cal. Ct. App.), 297

DRUG AND ALCOHOL TESTING

– Cal., criminal law permitting use of medical marijuana not applicable to employment, firing upheld (Cal.), 156
– Commercial truck drivers' violations, disclosure to state licensing authorities may be lawful under DOT rule, In Brief, 853
– Drug-free workplace programs in U.S. mines, MSHA proposed rule would mandate, overview, 1227
– 4th Amendment

– – Breathalyzer testing of off-duty police officer not unreasonable seizure despite fear of job loss (6th Cir.), 157
– – Public safety not implicated in library page position, mandatory test to combat societal problem unreasonable search (9th Cir.), 405

– Return-to-work and follow-up drug testing, DOT rule expands use of observed urination for safety-sensitive positions, 1036; rule delayed, 1195
– UPS driver in safety-sensitive position cannot sue for procedural violations of Okla. law, DOT standards control industry (10th Cir.), 806

DUE PROCESS

– Legal Arizona Workers Act, licensing law valid, claim properly dismissed (9th Cir.), 1280
– Mandatory retirement distinct from discharge, Chicago firefighters have no claims based on CBA's just cause provision (U.S., rev den), 58
– Punitive damages, religious bias verdict upheld but punitive damages nine times compensatory award excessive, reduced (E.D. Cal.), 1086
– School district ban on faculty participation in student-initiated prayer valid, coach's claims rejected (3d Cir.), 606
– Title VII omission of felons as protected class no constitutional violation, substitute teacher may not challenge school district's hiring bar (5th Cir.), 659

DUES, UNION

– Agency fees

See AGENCY FEES

– Idaho prohibition on local government employees' political payroll deductions violates 1st Amend. (U.S., rev grant), 1329

DUTY OF FAIR REPRESENTATION

See FAIR REPRESENTATION DUTY