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Vol. 7, Nos. 1-43, pp. 1-1462 Jan. 2 - Oct. 30, 2009 A | B | C | D | E | F | G | H | I | J | K | L | M | N | O | P | Q | R | S | T | U | V | W | X | Y | Z
E-MAIL
Attorney-client privilege, firm had no right to access bias claimant's e-mails sent to lawyer through personal account on company laptop (N.J. Super. Ct. App. Div.), 913
Communication technology speeds ahead, attorneys cautioned to stay informed, 484 NLRB e-filing rules expanded to allow service of process on other parties by e-mail, 202; e-filing changes implemented, summary, 289 SCA bars intentional unauthorized access of personal e-mail account, but proof of actual damages required to claim statutory damages (4th Cir.), 434 SCA, town commissioner may sue mayor for accessing her personal e-mail, forwarding to his own account (N.D. Ill.), 1032 Union business, protected activities, publisher's ban on non-job-related solicitation discriminatorily applied, discipline was ULP (D.C. Cir.), 959 Workplace computer privacy policies, case law analyzed for guidance on NEoP clauses, confidentiality, public vs. privileged information, 23
ADEA, waiver, no Ledbetter Act invalidation (11th Cir.), 1326
AT&T, ADEA, EEOC sues over no-rehire policies denying reemployment to early retirees (S.D.N.Y.), 1192
Acton-Boxborough Reg'l Sch. Distr., FMLA, equitable estoppel not applied where ineligible employee relied on oral approval to take leave (1st Cir.), 1087
Brewer Sch. Dept., sexual orientation bias, timing, other factors suggest pretext, lesbian softball coach's claims against high school revived (Maine), 803 City Univ. of N.Y. (CUNY), agency fees, 1st Amend., chargeable union expenses (2d Cir.), 1420 Coatesville Area Sch. Distr., incivility between plaintiff's and defendant's lawyers during discovery triggers order for training, lunch instead of sanctions (E.D. Pa.), 1289 Coleman Sch. Distr., fired superintendent's discovery limited to time span of alleged constitutional violations, not earlier (E.D. Wis.), 111 Cornell Univ., ADEA, sex bias, tenured position, contract nonrenewal adverse job action (2d Cir.), 1449 Del. State Univ., department head properly fired for changing grades, violating academic code, 1st Amend. retaliation claim rejected (3d Cir.), 471 Graham County Bd. of Educ., unreasonable searches, reasonable suspicion, county's random drug test policy unconstitutional (N.C. Ct. App.), 772 Heald College, ERISA, proof of plan bias admitted outside administrative record properly viewed in light most favorable to participant (9th Cir.), 117 Heritage Christian Schs., ADA, ADEA, agreement to Christian conciliation of claims with Bible as supreme authority enforceable under FAA, lawsuit barred (S.D. Ind.), 1226 Mercer County Comm. Coll., N.J. age bias ban's over 70 exception improperly applied to contract nonrenewal, school official's claims revived (N.J. Super. Ct. App. Div.), 600 Nettle Creek Sch., teacher reassigned to teach lower grade with no loss of pay, benefits failed to show adverse action, bias, retaliation claims dismissed (7th Cir.), 766 Nev. Sys. of Higher Educ., ADEA exclusive remedy barring retaliation suit under §1983, but sovereign immunity bars ADEA suit, bid to amend complaint properly rejected (9th Cir.), 281 N.C. State Univ., toxic tort claim fails for resident advisor, workers' compensation exclusive remedy (U.S., rev den), 358 NYC Dept. of Educ., Clean Air Act, whistleblowing, demoted maintenance worker's OSHA filing untimely (DOL ARB), 1118 Okla. State Univ., retaliation, supervisor's affair and related favoritism not gender-based sex bias against RIFd complainant, claim rejected (10th Cir.), 1192 Riverside County Office of Educ., ADA, Rehabilitation Act, retaliation, 3d party complaint, standing to sue (9th Cir.), 1441 School Bd. of Seminole County, ADA, accommodation claim revived, remanded for teacher's aide who sought nonsedentary jobs (11th Cir.), 73 Somerset Sch. Distr., ADA accommodation hardship (7th Cir.), 1351 Sumner County Bd. of Educ., ADA, school administrator transferred to teaching position in same broad class of jobs not regarded as disabled (6th Cir.), 968 Univ. of Ark. for Med. Sciences., sexual harassment, dean acted on good faith belief program director lied and harassed co-workers, firing lawful (8th Cir.), 509 Univ. of Pittsburgh, national origin bias, injunction granted, facility must continue to employ Russian biologist under H-1B visa program while she pursues claims (W.D. Pa.), 842 Univ. of Texas, 1st Amend., workers fired for exorcism of demonically oppressed co-worker's cubicle may have free exercise claim, but not free speech (N.D. Texas), 468 Valley View Local Schs., FMLA, mixed motive, retaliation claim revived where custodian's involuntary leave based on medical restrictions, excessive absences (6th Cir.), 1185
Local 21, post-merger decision to move IBEW bargaining unit into larger CWA unit was core business decision exempt from NLRA bargaining duty (9th Cir.), 603
Local 131, recognition withdrawn when reassignment combined represented and unrepresented workers, ALJ's bargaining unit analysis faulty, injunction denied (W.D. Mich.), 705 Local 269, free speech, content-based ordinance barring use of rat balloon in protest on public sidewalk violates 1st Amend., overbroad, invalidated (N.J.), 226 Local 702, secondary boycotts, nonunion contractor's Ill. antitrust claims completely preempted by NLRA, federal cause of action substituted, dismissal reversed (7th Cir.), 544 Local 761, last chance pact's prospective waiver of right to sue for bias under Ky. law invalid without arbitration option, retaliation claim revived (6th Cir.), 255 Local 995, Fluor Daniel, back pay, damages for rejected salts calculable under Oil Capitol evidentiary standards, no extraordinary circumstances shown, bid for reconsideration rejected (NLRB), 259
Fourth Amend., covert video surveillance of police locker room, city pays $2.75M to settle officers class suit (C.D. Cal.), 1230
Hidden camera in office was privacy intrusion, but employer had legitimate reasons, tort liability rejected (Cal.), 1096 Privacy violations, liability, ABA panel advises careful action, guidance, 1115 Radio frequency identification devices (RFIDs), GPS, attorneys advise on privacy implications, legal pitfalls, 641 Social media policies, monitoring of Facebook, MySpace sites, tips on avoiding SCA, Title VII, NLRA liability, 1002 Workplace computer privacy policies, case law analyzed for guidance on NEoP clauses, confidentiality, public vs. privileged information, 23
Motorola, ERISA, amendment capping mental disability benefits at 2 years not arbitrary or capricious, plan documents reasonably interpreted, conflict challenge rejected (7th Cir.), 1173
County EMTs can volunteer to work without pay for local emergency crew partially funded by county but still independent, Wage and Hour Op. Letter, 85; text, 92
H1N1 virus (Swine Flu)
See H1N1 VIRUS
Stipends and fees for volunteer EMTs, firefighters not shown to be nominal, admissible under FLSA, Wage and Hour Op. Letter, 84; text, 96 Volunteer Firefighter and EMS Personnel Job Protection Act
FELA, fear of developing cancer valid basis for damages only where shown to be genuine and serious, $5M award overturned due to improper jury instruction (U.S., rvs), 777; text, 789
Halliburton d/b/a/ Kellogg Brown & Root, rape by coworkers, tort claims not arbitrable (5th Cir.), 1261 N.Y., sexual harassment, fault split evenly between physician and hospital, nurse awarded record $15M (N.Y. Sup. Ct.), 321
Independent contractors, reclassification as employees, ten legal, tax, and benefits consequences explained, 1067
Rehire promise status benefit (E.D. Mich.), 1427 San Francisco experience touted as progressive blueprint for labor standards, city's reforms, advances discussed, 54
Appointments and personnel changes, assistant secretary of labor, Borzi nomination wins full Senate approval, In Brief, 1001
DOL semiannual regulatory agenda, 675 Form 5500, Schedule C guidance, EBSA Q&A, 1459 Investment advice, participant-directed accounts, DOL releases final rule, Rep. Miller (D-Cal) predicts harm to investors, vows to block, 122; rule delayed to consider legal and policy issues, 439
Bank violated bar on use of or reference to test results, but claimant manager failed to link to firing, anxiety problems, damages not shown (D.S.C.), 579
Independent contractor status, reclassification as employees, attorney advises on ten more consequences for employers, 1143 Waiver not allowed under Act, arbitration pact no bar to EPPA discharge claim (E.D. Va.), 227; service manager demoted after failing polygraph may proceed with firing suit (E.D. Va.), 808
ChevronTexaco, ERISA, workers hired through staffing agencies common law employees eligible for retirement benefits, claim revived as timely (S.D.N.Y.), 285
FLSA, flight attendant trainees not employees under 6-part test, airline need not pay wages during in-flight program, displacement key factor (W.D. Wash.), 276
Fraudulent inducement claim reinstated, ERISA no bar where no challenge to management or operation of ESOP (Ill. Ct. App.), 774
Single employer, reverse alter ego rejected, nonunion contractor not bound by pact with union contractor he helped, not shown to run dual shop (9th Cir.), 351
Olsten Staffing Servs., ADA, contractual arrangement with biased effect (W.D. Wis.), 1353
Adult nightclub operator's bid for TRO to protect trade secrets regarding guests, entertainers rejected, no irreparable injury shown (S.D. Ill.), 387
Arbitration clauses N.J., age bias, state law over 70 exception improperly applied to contract nonrenewal, school official's claims revived (N.J. Super. Ct. App. Div.), 600 Northeastern Land Servs. d/b/a NLS Group, discharge of worker for violating overly broad confidentiality provision unlawful, NLRB 2-member ruling upheld (1st Cir.), 383; review sought on 2-member panel's §3(b) authority to issue rulings (U.S., rev sought), 1193 O-1 visa ineligibility no bar to British pilot's breach claim against aviation service firm for failure to support efforts to obtain (E.D. Pa.), 200 Principal work location clause bars forced relocation, not travel requirement, ex-comptroller fired for insubordination not owed severance pay (7th Cir.), 437 Starbucks, breach, stolen laptop contained personal data on 97,000, class action filed (W.D. Wash.), 284 World Wrestling Entm't, breach, failure to withhold taxes, professional wrestlers' claims of unjust enrichment, misclassification rejected, no private right to enforce tax code (D. Conn.), 317
Appointments and personnel changes, assistant labor secretary for employment and training, Obama taps Oates for top slot, 552; Oates wins Senate approval, 884
Foreign labor certifications, iCERT portal system for electronic H-1B, PERM applications introduced, 553 H-2A, H-2B visa programs, FLSA may require relocation reimbursement, Bush era interpretation withdrawn, 474 OIG semiannual report to Congress summarized, 845 TAA, proposed rules withdrawn, ARRA supersedes, In Brief, 814 Underfunded multiemployer plans, civil penalties rule proposed, 1302 Unemployment insurance, multi-state combined-wage claims, guidance letter explains new rule, 203
Sexual harassment, Pa. Human Rights Act 4-employee threshold, at-will doctrine bar suit against small employer (Pa.), 1091
Wash., ouster demand not protected activity for mutual aid or protection, constructive discharge, firing claims rejected (Wash., en banc), 1228
Cal. bill, veto, 1430
E-Verify
American Recovery and Reinvestment Act (ARRA)
Directive to review E-Verify errors, identity theft, detention facilities announced, 202 Extension Federal contractor mandate to be implemented, no-match rule rescinded, advocates cite mixed message from DHS, 976; motions to block mandate denied (4th Cir.) (D. Md.), 1264 Final DOL rule mandating use by federal contractors postponed in wake of Chamber lawsuit, 77; postponement extended until May 21, 156; postponed until June 30, 582; fourth delay issued, 775 Forms, current I-9 form for new hires valid despite stated June 30 expiration date, USCIS announces, In Brief, 919 I-9 form for new hires, acceptable identity documents, USCIS delays implementing rule, 203 Ill. law barring employer enrollment in E-Verify unlawfully imposes state standards on federal program, preempted (C.D. Ill.), 393 New I-9 form approved by OMB, valid through 2012, In Brief, 1236 Passport information from State Dep't now incorporated into program, USCIS summarizes, 330 State and local laws
First quarter, 2009, 150 immigration-related bills introduced by states, report, 616
Legal Arizona Workers Act lawfully mandates use, coalition bid for rehearing denied (9th Cir.), In Brief, 394 Nebraska law requires use for state or local contracts, In Brief, 559 R.I. governor has executive authority to require vendors to use (R.I. Super. Ct.), 550
DOL reorganization, ESA to be dismantled, program offices will report directly to Solis, 1036
DOL ARB decisions, briefly, 87; 365; 685; 781; 1370
Milwaukee World Festival, ERISA, medical reviewers lawfully supplied with nonmedical history undercutting disability claim (7th Cir.), 1298
Raymond F. Kravis Ctr. for the Performing Arts, absence of vote preceding merger of IATSE locals no basis for withdrawal of recognition, bargaining order upheld (D.C. Cir.), 47 World Wrestling Entm't, failure to withhold taxes, professional wrestlers' claims of unjust enrichment, misclassification rejected, no private right to enforce tax code (D. Conn.), 317
CAA
CWA Obama vows to create green jobs in meeting with Mexican President Calderon, 581
Atlantic States Cast Iron Pipe, EPA, DOJ fines total $8M for safety, Clean Air Act violations, conspiracy, blocking investigation, concealing accidents, managers sentenced (D.N.J.), 606
ADA Amendments Act (ADAAA), proposed rule
Approved, sent to OMB for review, 844
Commission approves, 1266 Implementation, comments sought on proposed rules and interpretive guidance, 1285 Posting notices, 1459
Commission chair, Obama will nominate Berrien, 1000
General counsel Cooper steps down, Lee steps in, parting remarks, In Brief, 235 Budget FY2009, omnibus spending bill Enforcement FY2008, charges reached record high, preliminary report confirmed, 395 FLSA, requiring EEOC employees to take compensatory time instead of overtime pay for excess hours worked willful violation (Arb., FMCS), 467 GINA
Comments sought on proposal to add references to existing ADA, Title VII rules, 711
EEOC clears rule for OMB review, In Brief, 1141 Posting notices, 1459 Proposed regulations to implement bias ban released, summary, comments sought, 279 Health insurance eligibility, county's Clinical Health Risk Assessment likely violates ADA, EEOC Op. Letter, 633 No-withdrawal substitution, authority to investigate Title VII violations exists independent of resolution by parties, subpoena enforceable (7th Cir.), 146 Pay bias compliance manual revised to conform with Ledbetter Act, 1179 Racial or sexual harassment, attorneys, officials address issues raised when perpetrators anonymous or hard to identify, 523 Semiannual regulatory agenda, 675 Women, racial minorities still underrepresented, but reasons complex, attorneys say, Earp gauges progress, 526
Equivalent jobs, viability (W.D. Pa.), 1327
Fair Pay Act Lilly Ledbetter Fair Pay Act Paycheck Fairness Act
Gender variance bias, stereotyping claim proceeds for transsexual fired from Ga. legislative job (N.D. Ga.), 969
Race bias, suit proceeds for Iran-born translator fired by Voice of America after criticizing Iraq war (D.D.C.), 1262 Reverse race bias, disparate impact clash, city firefighters claim promotion test results twice scrapped because too few minorities passed (U.S., rev grant), 67; (oral arg), 565; discarding test results without strong basis in evidence that rejected minority candidates could prevail on disparate impact claim was reverse bias (U.S., rvs), 903; Ricci decision unlikely to change opinions on Sotomayor Supreme Court nomination, speakers comment, 920; text, 928
Coal dust exposure, MSHA proposes rule for approving real-time, continuous monitoring devices, 123
Anti-cutback, promised post-retirement increases not accrued benefits, lawfully canceled by multiemployer fund (6th Cir.), 708
Attorneys' fees paid out of undistributed vested benefits violates anti-alienation provision, injunction based on common fund doctrine reversed (2d Cir.), 327 Beneficiary disputes, barring waiver under valid QDRO, plan documents rule governs outcome, benefits properly paid to ex-wife (U.S., aff), 158; text, 173 Cash balance plans Disability benefits, any occupation, contractual time-bar (10th Cir.), 1358 Disclosure violations, §101(j), DOL final rule assesses civil penalties up to $1K per day per violation against plan administrators, 53 Discretionary clauses, Mont. prohibition (9th Cir.), 1456 Dual-role administrator, amendment capping mental disability benefits at 2 years not arbitrary or capricious, plan documents reasonably interpreted, conflict challenge rejected (7th Cir.), 1173 Evidence of plan bias admitted outside administrative record properly viewed in light most favorable to participant (9th Cir.), 117 Fiduciary breach
See FIDUCIARY DUTY
Fraudulent inducement claim reinstated, ERISA no bar where no challenge to management or operation of ESOP (Ill. Ct. App.), 774 Interference, §510
Art Inst. of Chicago, fired security guards (N.D. Ill.), 1457
Fiduciary Trust Intl., no specific ERISA benefits identified, fired executive's claim fails (S.D.N.Y.), 1196 Staffing firm fired claimant for alleged disloyalty, not contributions complaint, no pretext shown (D. Ore.), 673 Misrepresentation about long-term disability benefits not intentional, reliance claim rejected, fraud claim preempted (U.S., rev den), 605 Nonforfeiture rule violated by failure to include benefits accrued during 3 months between retirement and first payout (7th Cir.), 514 Phantom account offset, refusal to allow repayment of prior distributions, remedy to pay more benefits to rehired Xerox workers upheld (U.S., brief sought), 334; solicitor general recommends no review (U.S., brief filed), 819; deference to plan administrator, judicial discretion issues set for Oct. review (U.S., rev grant), 923 Post-retirement work as baked goods distributor not same trade or craft, former meat cutter's plan benefits improperly suspended (8th Cir.), 1139 Preemption
See PREEMPTION
Res judicata, prior class settlement, overtime (N.D. Okla.), 1321 Retaliation, ERISA §510 pertains to formal inquiry or hearing, does not protect informal complaints, firing lawful (E.D. Pa.), 1099 Retiree health benefits Rouge Steel, rehire promise status benefit, §510 interference (E.D. Mich.), 1427 Severance pay properly denied where stock trader was offered comparable position with purchasing company (S.D.N.Y.), 973 Statutes of limitations, S.C., 3-year window applies to §501(c) suit for statutory penalties, claim revived (4th Cir.), 118 Surviving spouse pension rights, prenuptial agreement, waiver (D.N.J.), 1396 U.S. Supreme Court docket, 2009-2010 term, 1336
ADEA
Application of but-for standard dooms FedEx couriers' case on remand from Supreme Court (S.D.N.Y.), 1131
Attorneys fees, sanctions, bad-faith claims merit order to pay most of defendant's legal fees, upheld (7th Cir.), 1255 Indirect, use of McDonnell Douglas burden-shifting framework (1st Cir.), 1411 Mixed-motive jury instruction requires direct proof, executive's award reversed, new trial ordered (U.S., oral arg), 478; but-for causation required, motivating factor standard, burden-shifting to employer rejected (U.S., rev, rem), 829; text, 854 Post-Gross, fired financial officer who showed pretext may use burden-shifting analysis to establish claims (W.D. Okla.), 1291 Defense document forged, answer struck (N.D. Ga.), 1451 ERISA, proof of plan bias admitted outside administrative record properly viewed in light most favorable to participant (9th Cir.), 117 Fax confirmation of timely EEOC filing sufficient to revive fired truck driver's bias claims (7th Cir,), 1191 Ind., mixed-motive jury instruction allowable based on direct or circumstantial proof of bias (Ind.), 767 PDA, FMLA, after-acquired proof of job-related misconduct properly rejected where no showing of relevance or factual basis, plaintiff's $50K judgment affirmed (10th Cir.), 318 Protecting Older Workers Against Discrimination Act Salts
Back pay, union challenge to NLRB ruling assigning burden of proof to rejected union salt dismissed, unripe (D.C. Cir.), 512
Fluor Daniel, back pay, damages for rejected salts calculable under Oil Capitol evidentiary standards, no extraordinary circumstances shown, bid for reconsideration rejected (NLRB), 259 Salting practices data provided to NLRB as evidence under Oil Capitol exempt from disclosure to employers, regions advised in memo, 48
13494, 13496, 13495, 13502, Obama agenda on labor and employment law called aggressive, but pragmatic by ABA panelists, 1116
13496, NLRA rights, posting notices, DOL proposes federal contractor requirements, 1100 13502, PLAs, project-by-project basis, FAR councils extend comment period to Sept. 23, 1202 Federal contractors, workers' rights, Obama issues 3 labor-friendly orders, summary, 187; notification of rights under federal laws, text, 206; nondisplacement of workers under service contracts, text, 208; economy in contracting, text, 210 Federal employees, text messaging ban, 1361 Project labor agreements (PLAs)
ADEA, Title VII claims dismissed for failure to exhaust administrative remedies, but retaliation claim based on earlier bias complaint revived (4th Cir.), 37
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