Workplace Law Report Index-Summary

E-MAIL

– Forensic search of company-owned laptop, personal files prior to termination lawful despite employee's option to buy (S.D. Cal.), 438
– Freedom of speech

– – National origin bias, harassment, 1st Amend. no bar to personal liability claim against NYPD counter-terrorism adviser who sent anti-Muslim e-mails (S.D.N.Y.), 208
– – Union business, protected activities, publisher's ban on non-job-related solicitations lawful under NLRA (NLRB), 17; NLRB rulings get opposing reviews from management, union speakers, Columbia University, Guard decisions analyzed, 303; law professors predict reversal of Guard ruling, 638; Meisburg reports on solicitation cases decided since Register-Guard, 692
– – University worker who e-mailed inaccurate pay restructuring data received from NAACP lawfully fired (4th Cir.), 633

– Internet use, employer monitoring, blocking, dismissals on the rise, 2007 survey says, 335
– NLRB launches E-issuance pilot program, board decisions Aug., ALJ decisions Oct., In Brief, 1036
– Spoliation of evidence, bank that eliminated manager's job during FMLA leave sanctioned for deleting e-mail sought in discovery (N.D. Ga.), 397

EARLY RETIREMENT

– ERISA

– – Amtrak voluntary plan (VERP) supplement excluded from qualified “retirement-type” subsidies, cutbacks lawful (D.D.C.), 910
– – Lump-sum payment improperly reduced by new actuarial assumptions (U.S., rev den), 810

– N.J. public employees' incentive program, enacted, In Brief, 921

EBSA

See EMPLOYEE BENEFITS SECURITY ADMINISTRATION (EBSA)

ECONOMIC ACTIVITY

– Emergency Economic Stabilization Act

See LEGISLATION, FEDERAL, HR 3997, HR 1424

ECONOMIC OUTLOOK

– Household income, earnings variability has changed little since 1980s, CBO volatility study, 974
– Recovery Rebates and Economic Stimulus for the American People Act

See LEGISLATION, FEDERAL, HR 5140

EDUCATIONAL INSTITUTIONS

– Bd. of Educ. of N.Y., free speech, political button ban upheld, but campaign postings on teacher boards, mailboxes lawful (S.D.N.Y.), 1438
– Brevard County Pub. Schs., FMLA claims revived for employee who failed to complete PIP during leave to care for granddaughter (11th Cir.), 1332
– Columbia Univ., e-mail, NLRB rulings get opposing reviews from management, union speakers, Trustees of Columbia University, Guard Publishing decisions analyzed, 303
– Dearborn Pub. Schs., privacy, cameras hidden in office-locker room, principal not immune from gym teachers' claims (E.D. Mich.), 567
– District of Columbia Public Schools, ADA, failure to hire deaf applicant not bias where other applicants more qualified for IT job (D.C. Cir.), 690
– El Paso Indep. Sch. Distr., felons not a protected class under Title VII, substitute teacher has no claim over hiring bar (5th Cir.), 659
– Eliz. Forward Sch. Distr., ADEA, EPA, sex bias, 12 teachers hired at lower pay step than younger or male teachers awarded $1.2M verdict (W.D. Pa.), 563
– Iona Coll., race-based association bias actionable under Title VII, claim revived for coach fired due to interracial marriage (2d Cir.), 463
– Lake Pend Oreille Sch. Dist., free speech, retaliation, whether safety complaint was part of job duties is fact question for jury, revived (9th Cir.), 1400
– Marygrove Coll., FMLA, where handbook failed to tie “leave per year” to fiscal year, employee free to select any 12-month period (E.D. Mich.), 1214
– Miss. State Univ., fired golf coach's $10K jury verdict reinstated despite evidence he hit student with empty golf bag (Miss. Ct. App.), 1334
– Monroe Community Coll., denial of spousal health benefits to same-sex couple validly married in Canada constitutes sexual orientation bias under N.Y. law (N.Y. App. Div.), 192
– NYC Dept. of Educ., race bias, teacher candidates may sue city employer for imposition of certification requirements, but not state (U.S., rev den), 916
– Parkwood Developmental Ctr., withdrawal of recognition from UFCW the day after pact expired was ULP where union produced evidence of support before expiration (D.C. Cir.), 533
– Pay schedules, FLSA allows 1-week adjustment to school district's bi-weekly pay period for administrative convenience, Wage and Hour Op. Letter, 1065; text, 1075
– Riverside Twp. Bd. of Educ., ADA, attorneys' fees and sanction properly denied, “false memory syndrome” claim dubious but not frivolous (3d Cir.), 149
– Sch. Distr. #70. FMLA retaliation claim partially revived for bookeeper demoted during intermittent leave (7th Cir.), 621
– Sch. Distr. of Twp. of E. Brunswick, N.J., ban on faculty participation in student-initiated prayer valid, coach's constitutional claims rejected (3d Cir.), 606
– School Comm. of Lowell, national origin bias, English fluency test unevenly administered, foreign-born teachers properly reinstated with back pay (Mass. App. Ct.), 1334
– Teaching and Research Assistant Collective Bargaining Rights Act

See LEGISLATION, FEDERAL, HR 5838, S 2891

– Univ. of Cal., Los Alamos Natl. Lab., whistleblowing auditor fails to link protected speech to federal retaliation charges (D.N.M.), 847
– Univ. of Texas, 1st Amend., mixed speech, computer auditor's complaints made as citizen may be protected if matter of public concern, analysis required, remanded (5th Cir.), 295
– Univ. of Texas at Dallas, 11th Amend. no bar to suit for prospective relief, FMLA reinstatement claim revived against state official sued in official capacity (5th Cir.), 993
– Univ. of Va., freedom of speech, worker who e-mailed inaccurate pay restructuring data received from NAACP lawfully fired (4th Cir.), 633
– Virginia Beach City Public Schs., national origin bias, Russian native rejected for Russian teacher position in favor of native Russian substitute teacher has no claim (E.D. Va.), 495
– Washington & Jefferson Coll., ADA, presence, interaction essential, agoraphobic professor who rejected transfer accommodation has no claim (3d Cir.), 907

ELECTRICAL WORKERS (IBEW)

– Local 2, Gissel bargaining order adopted to remedy cable installer's numerous ULPs during IBEW organizing (NLRB), 1337
– Local 15, on-call time, linemen required to be within 2-hour drive and reachable by phone or beeper not working, FLSA class claims properly dismissed (7th Cir.), 493
– Local 21, performance management plan implementation potential pact breach, IBEW recognition clause triggers arbitration (U.S., rev den), 416
– Local 429, ULPs, NLRB ordered to reconsider ruling that joint apprenticeship committee acted as agent of IBEW (6th Cir.), 187
– Southern Nuclear Operating, ULPs, benefits for future retirees may not be modified without giving union opportunity to bargain (D.C. Cir.), 631

ELECTRONIC MONITORING

– Blogs, networking sites, web videos now generate many privacy disputes, speakers explore altered landscape, 1038
– Cameras hidden in office-locker room, principal not immune from gym teachers' privacy claims (E.D. Mich.), 567
– Eavesdropping by hidden baby monitor, privacy, federal wiretap claims viable for weight loss center sales consultant, but firing claims rejected (W.D. Okla.), 1003
– Employee Changing Room Privacy Act (ECRPA)

See LEGISLATION, FEDERAL, HR 5228

– Forensic search of company-owned laptop, personal files prior to termination lawful despite employee's option to buy (S.D. Cal.), 438
– Internet use, employer surveillance, blocking, dismissals on the rise, 2007 survey says, 335
– Privacy, 4th Amend., attorney advises review of electronic communications policies, 9th Cir. ruling widened standard of reasonable expectation as to company-provided tools, 1039

ELECTRONICS INDUSTRY

– Emery Electronics, Access Point Employment Alternatives, FMLA interference claim viable for financial controller fired during maternity leave, but not retaliation, sex bias (E.D. Mich.), 286
– Future Elecs. GP, ADA, breast cancer survivor's firing claim advances, manager's remarks may prove pretext (S.D. Miss.), 1394
– Motorola, FMLA retaliation claims revived for workers denied reinstatement, tuition reimbursement after leave (7th Cir.), 113

ELEVENTH AMENDMENT

– Sovereign immunity

See SOVEREIGN IMMUNITY

EMERGENCY SERVICES

– Ambulance rescue, on-call time, fluctuating pay duty under FLSA reflects workload, ability to use for personal purposes, Wage and Hour Op. Letter, 1097; text, 1103
– Tazewell-Pekin Consol. Commc'ns Ctr., FMLA employee threshold not met, absentee 911 dispatcher failed to show joint employer status with city, county (7th Cir.), 1083

EMOTIONAL DISTRESS

– Ohio, state law claim by arthritic former cashier denied disability accommodation fails, ADA claim survives (6th Cir.), 1243

EMPLOYEE BENEFITS

– WATG Holdings, fraudulent misrepresentation, part-time worker fired after inquiring into promised full-time benefits showed inducement, reliance, suit advances (D. Hawaii), 849

EMPLOYEE BENEFITS SECURITY ADMINISTRATION (EBSA)

– Annual reports, delinquent filing penalties, online payment, In Brief, 1283
– Eligible investment advice arrangement (EIAA), limited ERISA exemption for 401(k) plans, IRAs, proposed rule offers guidance, 1196; DOL to complete proposal this year, hearing report, 1407
– Pension protection, information sharing, DOL, SEC sign memorandum of understanding (MOU) to formalize, overview, 1063
– Terminated or abandoned IAPs, distributions to missing non-spouse beneficiaries, class exemption amendment, final EBSA rules, 1380

EMPLOYEE STOCK OWNERSHIP PLANS (ESOPs)

– GM, ERISA, partial disclosure of SEC data misled ESOP participants, $37.5M, monitoring settles fiduciary breach claims (E.D. Mich.), 123
– Oneida, corporate mismanagement fiduciary breach, workers may pursue ERISA claim over ESOP termination (N.D.N.Y.), 670
– Syncor Intl., ERISA fiduciary breach, summary judgment favoring plan sponsor improperly entered after court notified of class accord (9th Cir.), 250

EMPLOYER STATUS

– Catalano Farms, Paramo labor contractor are joint employers liable for improper meal deductions that brought wages below federal minimum (D.N.J.), 1305
– Delinquent contributions, union, non-union trucking firms acted as single employer, integrated enterprise renders both liable (E.D.N.Y.), 908
– FMLA employee threshold not met, absentee 911 dispatcher failed to show joint employer status with city, county (7th Cir.), 1083
– Joint employers, FMLA claim revived for IT manager employed by contractor, terminated by client (6th Cir.), 427
– Race bias, disparate impact, testing, NYC teacher candidates may sue city for imposition of certification requirements, but not state (U.S., rev den), 916

EMPLOYMENT AGREEMENTS

– Ace Mortgage Funding, breach asserted against ex-employee who unlawfully altered contents, links during post-termination control of corporate web site (S.D. Ind.), 406
– Bias settlement required minimal job references, disclosure of lawsuit possible breach, suit revived (7th Cir.), 1003
– Civil Rights Act of 2008

See LEGISLATION, FEDERAL, HR 2159, S 2554

– Confidentiality clause prohibiting disclosure of terms violated NLRA (NLRB), 965
– FMLA liability based in contract, promissory estoppel claim revived for claimant who relied on handbook promise, letters, but was deemed ineligible under 50/75 rule (7th Cir.), 991
– Mandatory arbitration, unconscionability ruling reversed, but lawsuit over rights to employee's trading model could have been waiver if prejudicial, remanded (3d Cir.), 527
– N.Y., retaliation, journalist's ethics conflict not protected, nonrenewal no breach even if pretextual (7th Cir.), 1251
– “No-rehire,” “no-reapply” covenants, non-disparagement clauses in bias settlement, separation agreements, EEOC attorney warns of agency opposition, legal pitfalls, 548
– Subsidiary's mandatory arbitration accord applies to claims against hiring bank where execution contemporaneous, same subject matter, and employment contract referenced (Nev.), 724

EMPLOYMENT AND TRAINING ADMINISTRATION (ETA)

– Priorities, five-year strategy for researching, evaluation top issues released, 55
– Unemployment insurance, multistate wage claims, ETA issues final rule to prevent forum shopping, 1444

EMPLOYMENT AT WILL

– N.Y., journalist's ethics conflict not protected, nonrenewal of contract no breach even if pretextual (7th Cir.), 1251
– Strike replacements “permanent” despite at-will clause, failure to reinstate economic strikers no ULP (7th Cir.), 1249
– WARN Act, handbook's assertion of at-will status no waiver, certified class action may proceed against 2 firms operating as single employer (W.D. Ark.), 404

EMPLOYMENT ELIGIBILITY VERIFICATION

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

– – Consolidated Security, Disaster Assistance, and Continuing Appropriations Act

See LEGISLATION, FEDERAL, HR 2638

– – Employee Verification Amendment Act

See LEGISLATION, FEDERAL, HR 6633

– – FAR Council's proposed E-Verify mandate garners heavy criticism as comment period closes, Special Report, 1197
– – Federal contractors required to use program under Bush executive order, 808; FAR Council proposes rule to require contractor compliance, 852
– – Legal Arizona Workers Act, business groups denied TRO on hiring sanctions bill mandating use of E-Verify (D. Ariz.), bid for emergency stay rejected (9th Cir.), 28; governor calls for changes to correct defects in bill, In Brief, 101; contractors challenge bill, enforcement postponed until March pending ruling (D. Ariz.), 164; constitutional challenge rejected, law upheld (D. Ariz.), 219; coalition bid to halt implementation rejected (D. Ariz.), 351; clarified hiring sanctions enacted, 641; licensing law valid, preemption, due process claims properly dismissed (9th Cir.), 1280
– – New rules expected “in near future,” Chertoff tells lawmakers, 348
– – 10-year extension bill

See LEGISLATION, FEDERAL, HR 5596

– – Visa Efficiency and E-Verify Extension Act

See LEGISLATION, FEDERAL, S 3414

– Enforcement onus shifts to employers as immigration, labor, criminal laws collide, attorneys critique methods, 1258
– Federal hiring fines hiked, more new rules expected, DOJ, DHS announce, 299
– H-2B visa program, DOL proposed changes would urge use of E-Verify, redefine “temporary,” Chao explains, 726
– ICE targeted enforcement, compliance outreach continue into 2008, Myers tells conferees, 127
– No-match letters

– – Discrepancies not constructive notice of undocumented status, reinstatement upheld for fired janitors (9th Cir.), 850
– – New rules expected “in near future,” Chertoff tells lawmakers, 348
– – Revisions, DHS issues supplemental rule proposal in response to injunction, rebuts arguments, 443; comment period closes, proposal draws criticism from business, immigrant rights groups, overview, 593; final rule issued without substantive change, disappointing labor, business groups, 1440
– – Rule expected to move forward, Myers tells conferees, 127
– – Senate GOP package includes bill to allow DHS use of no-match letters, 348
– – SSA reports legal challenges prevent mailing no-match letters for tax year 2007, In Brief, 637

– Privacy Act, black lung claimant denied attorneys' fees in challenge to DOL's disclosure (4th Cir.), 51
– Secure America Through Verification and Enforcement (SAVE) Act

See LEGISLATION, FEDERAL, HR 4088

– Senate GOP package includes bill establishing new mandatory Electronic Employment Verification System (EEVS), 348
– State and local laws

– – Ariz., business groups denied TRO on hiring sanctions bill mandating use of E-Verify (D. Ariz.), bid for emergency stay rejected (9th Cir.), 28; governor calls for changes to correct defects in bill, In Brief, 101; contractors challenge bill, enforcement postponed until March pending ruling (D. Ariz.), 164; constitutional challenge rejected, law upheld (D. Ariz.), 219; coalition bid to halt implementation rejected (D. Ariz.), 351; clarified hiring sanctions enacted, 641
– – Ariz. mandate

See ARIZONA

– – Ill., bill to modify E-Verify ban introduced, In Brief, 101
– – Minn., governor orders state agencies and contractors to use E-Verify for new hires, 2008 legislative package announced, 63
– – Mo., law enacted mandating verification, penalizing hiring, misclassification, barring public benefits, 984

– 10-year extension bill

See LEGISLATION, FEDERAL, HR 5596

– USCIS official predicts changes will reduce “already low” mismatch rate, skeptics comment, 635

EMPLOYMENT STANDARDS ADMINISTRATION (ESA)

– State legislation report shows more labor laws enacted in 2007, including wage and immigration laws, overview, 226
– 2008 agenda, FMLA tops, then child labor rules, Wage and Hour enforcement, OLMS struggles, Lipnic discusses, Special Report, 162

ENERGY DEPARTMENT (DOE)

– Oak Ridge, FCA retaliation claim revived for nurse fired after warning federal contractor about underreporting health records to DOE (6th Cir.), 667

ENERGY REORGANIZATION ACT (ERA)

– Cook Nuclear Power Plant, test engineer fired after questioning excessive hours, NRC rules breach protected whistleblower under ERA (6th Cir.), 722
– Whistleblowers, DOL ARB decisions, briefly, 674; 781; 1382

ENGLISH-ONLY RULES

– National origin bias, fluency test unevenly administered, foreign-born teachers properly reinstated with back pay (Mass. App. Ct.), 1334
– Senate clears measure shifting funds used to sue employers to program teaching English, civics to immigrants, 413

ENGRAVING AND PRINTING BUREAU (BEP)

– National origin, religious bias, Afghan employee fails to show harassment over origin or travel (D.D.C.), 1311

ENTERTAINMENT INDUSTRY

– Arbitration, Cal. Talent Agencies Act provides labor commissioner with exclusive jurisdiction over agent/performer disputes, but FAA may preempt (U.S., oral arg), 93; signed accord controls, FAA supersedes Cal. law (rev), 259; text, 270
– Dreamland Amusements, state court should rule on subpoenas in probe of N.Y. labor code violations against H-2B workers, remanded (S.D.N.Y.), 1316
– Intl. Creative Mgt., Broder Kurland Webb Agency, age bias, data on all WGA members essential to fair resolution of class claims, disclosure ordered (Cal. Ct. App.), 1157; agencies pay $4.5M to settle, 1184
– Lodge at Torrey Pines P'ship, sexual orientation bias, no individual liability for retaliation under FEHA, verdict against former supervisor reversed, against lodge upheld (Cal.), 371
– Next Entm't, conflicts of interest, networks' bid to disqualify WGA's law firm from representing reality show employees rejected, valid waivers signed (Cal. Ct. App.), 766
– Powerhouse Prods., consideration lacking for rocketbelt pilot's noncompete promises, stuntman pact unenforceable (Texas Ct. App.), 1166
– Sanford-Orlando Kennel Club, CCC Racing, overtime, functional operation as single entity, intermingled funds render seasonal dog race firms ineligible for amusement business exemption (11th Cir.), 148

ENVIRONMENT

– Green workplace, environmental responsibility policies instituted in almost half of U.S. firms appeal to workers, SHRM reports, 115
– Prohibiting the Department of Labor's Secret Rule Act

See LEGISLATION, FEDERAL, HR 6660

– Soil fumigant pesticides, risk mitigation, new EPA measures protect farmworkers, 1010
– Utah, government workers shift to mandatory ten-hour, four-day workweek to save energy, 1041
– Wash., governor enacts bill to reduce greenhouse emissions, create green jobs, 421
– Whistleblowers

– – CERCLA, “perceived potential applicant” for city job who reported dumping of hazardous waste in reservoir not protected (DOL ARB), 512
– – DOL ARB decisions, briefly, 512; 674; 781; 1170; 1382
– – Retaliation cases increasing, OSHA caseload reviewed, law still developing, lawyers told, 693

– Yerlington Copper Mine, whistleblower's mine cleanup claims protected under Safe Water Act, award upheld (DOL ARB), 1229

EPA

See EQUAL PAY ACT (EPA)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

– ADEA

– – “Counseled” charge subject to same standard as pro-se filing, customer service applicant's claim sufficient, revived (3d Cir.), 800
– – Disparate impact, reasonable factors other than age (RFOA) exception, comments sought on proposed rules update, 477
– – Limitations period, EEOC intake questionnaire and affidavit seeking agency action to vindicate rights was timely claim equivalent to charge (U.S., aff), 283; text, 309
– – Retiree health benefits exemption tied to Medicare eligibility, EEOC issues final rule, 24
– – Rulemaking, EEOC exemption allowing employer plans to coordinate retiree health benefits with Medicare upheld (U.S., rev den), 449

– Administrative subpoena may be issued to employer even after right-to-sue letter sent, suit initiated (9th Cir.), 1245
– Appointments and personnel changes

– – Barker nominated to fill empty GOP seat, 443; Senate confirms, 943
– – Systemic investigation program manager, Hutter named to new position, 1228

– Budget, FY2009, Bush administration proposes $342M, 195
– Call center, sole-source contract approved for one-year extension, 255
– Disclosure of employer information, release to 3d party barred due to conflict between EEOC policy and its own FOIA rules (D.C. Cir.), 930
– EEO-1 form, agency seeks to extend use of current version through Jan. 2010, 1407
– Employee selection procedures (UGESP), EEOC votes to seek White House approval on extension of guidelines' recordkeeping rules, Internet concerns aired, 413; comment sought on request to OMB to renew UGESP without change, 444
– Federal sector complaints, proposed changes to case handling rules approved for review by other agencies, 780
– FY2007, private-sector charges up 9 percent, race bias, retaliation claims most common, 348
– Implicit bias in workplace, agency seeks large class action cases, considers use of expert witnesses for individual claims, 548
– “No-rehire,” “no-reapply” covenants, non-disparagement clauses in bias settlement, separation agreements, EEOC attorney warns of agency opposition, legal pitfalls, 548
– Outlook, systemic litigation initiative will continue to grow, Ishimaru looks to next-generation issues, 914
– Performance, FY2007-FY2012, agency rejects work group's proposed modification of 5-year strategic plan, 853
– Pregnancy bias, conferees examines state of PDA at 30-year mark, past and future legal issues, record high EEOC filings in FY2007, 10-year study, 1447
– Rehabilitation Act, agency to revamp internal complaint process, replace “handicap” with “disability,” 256
– Religious bias, Title VII, compliance guidance adopted, overview, 1021
– Technology innovations yield useful resources for labor, EEO cases, NLRB, NMB, EEOC officials explain, 639
– Title VII, ADA, 3 grounds for dismissal of charges cut in new rule, 127

EQUAL PAY ACT (EPA)

– Affirmative defense proven, education, experience accounted for pay disparity (S.D.N.Y.), 1309
– Paycheck Fairness Act

See LEGISLATION, FEDERAL, HR 1338, S 766

– Solo Cup, wage difference justified by college-educated male's computer skills, even if not required for position (7th Cir.), 287
– Teaching, 12 women hired at lower pay step than younger or male teachers awarded $1.2M verdict on age, sex bias in pay (W.D. Pa.), 563
– Title VII Fairness Act

See LEGISLATION, FEDERAL, S 3209

– Title VII retaliation, disclosure of private data to attorneys not protected where irrelevant to discovery, firing lawful under 6-factor test (6th Cir.), 903

EQUAL PROTECTION

– Class-of-one theory not available to public employee claiming discharge from state government for arbitrary reasons (U.S., rev grant), 94; (oral arg), 576; class-of-one not applicable in public employee context (U.S., aff), 793; text, 816

EQUIPMENT AND TOOLS

– CFAA

See COMPUTER FRAUD AND ABUSE ACT (CFAA)

– Confined spaces, power lines, cranes and derricks, OSHA standards, DOL semiannual regulatory agenda, 636
– Cranes and derricks, OSHA proposed rule pending, overview, 1283
– Mine rescue, MSHA final rules amend standards, 1256
– Personal protective equipment (PPE), training, employers required to provide under OSHA proposed rule, includes respirators, 1168
– Sunbelt Rentals, religious bias, Muslim agent called “Taliban,” “towel head” in wake of 9/11 and sniper attacks showed severe or pervasive harassment, claim revived (4th Cir.), 495

ERA

See ENERGY REORGANIZATION ACT (ERA)

ERGONOMICS

– Retail manager's wrongful discharge claim based on reasonable belief in seating safety violations may proceed (D. Ore.), 399

ERISA

– Anti-cutback rules

– – Amtrak voluntary early retirement plan (VERP) supplement excluded from qualified “retirement-type” subsidies, cutbacks lawful (D.D.C.), 910
– – Early retirees' lump-sum payment improperly reduced by new actuarial assumptions (U.S., rev den), 810
– – Industry-related disability (IRD) benefit is welfare benefit, not pension benefit, earnings cap amendment no violation (2d Cir.), 193; (U.S., rev den), 1352

– Asset smoothing, PPA technical corrections bill

See LEGISLATION, FEDERAL, HR 6382

– Assignment, alienation of plan benefits barred, QDRO required to waive rights in divorce (U.S., rev grant), 263; status discussed, 1329; plan document rule examined (U.S., oral arg), 1345; supplemental briefings sought on plan document rule (U.S., brief sought), 1440
– Bankruptcy, plan termination, PBGC proposed rule would drop guarantee on benefits earned after filing, overview, 942
– Benefits offsets for Social Security awards reasonable, level of review for conflicts discussed but not reached (11th Cir.), 1252
– Cash balance plans

See CASH BALANCE PLANS

– Conflict of interest exists where dual-role administrator makes eligibility determinations and pays benefits, applicable level of judicial review at issue (U.S., rev grant), 135; (oral arg), 576; conflict is factor to be weighed in determining abuse of discretion (aff), 835; text, 878; conflict “tiebreaker” favors plaintiffs, attorney speakers predict potential impact, 1035
– Constructive discharge, employee who resigned “for good reason” after supervisor created adverse change in job may sue for severance (N.D. Cal.), 539
– Death benefits to spouses are welfare benefits, not covered by anti-cutback rule, lawfully removed by plan amendment (3d Cir.), 1225
– Disability benefits at issue not created by or incorporated by CBA, thus denial not subject to grievance arbitration (3d Cir.), 537
– Emergency Retirement Health Benefit Protections provision, PPA technical corrections bill

See LEGISLATION, FEDERAL, HR 6143

– Fringe benefits, criminal trial set for attorney who devised fund allowing N.Y. contractors to evade state, federal prevailing wage laws (E.D.N.Y.), 1278
– Genetic Information Nondiscrimination Act (GINA)

See LEGISLATION, FEDERAL, HR 493, S 358

– Health care amendments, CRS updates 2008 report, 1010
– Interference, §510

– – Discharge after disability lawsuit due to reorganization, desire for more experienced candidates, not pretext for retaliation (8th Cir.), 538
– – Equitable tolling, unreinstated strikers allegedly misled into resigning to collect 401(k) benefits may sue for reinstatement, back pay (N.D.N.Y.), 696
– – Misconduct pretextual basis for firing after notice of shoulder surgery, claim revived (8th Cir.), 505
– – Plant closure benefits, no ERISA remedy for deprivation, impermissible “instatement” order reversed (U.S., rev den), 947
– – Reclassification as independent contractor after breakup of romantic affair no breach (7th Cir.), 252
– – Termination for misreporting pay to state UI agency lawful, no pretext shown (W.D. Mich.), 1315
– – Wachovia Sec., breach of contract, promissory estoppel claims related to disability benefits barred, others viable (D. Minn.), 439

– Issue exhaustion not required, federal appeal not barred by failure to raise all theories in administrative appeal (9th Cir.), 1314
– Jurisdiction, declaratory judgment action properly rejected where filed to avoid Mich. trial, not enforce plan provisions or ERISA (7th Cir.), 970
– Pension protection, information sharing, DOL, SEC sign memorandum of understanding (MOU) to formalize, overview, 1063
– Preemption

See PREEMPTION

– Prohibited transactions, eligible investment advice arrangement (EIAA) offers limited exemption for 401(k) plans, IRAs, EBSA proposed rule offers guidance, 1196; DOL to complete proposal this year, hearing report, 1407
– Remedies clause, §502(a)(3), “other appropriate equitable relief” does not include payment of life insurance benefits denied due to breach of fiduciary duty (U.S., brief sought), 349; review urged (U.S., brief filed), 736; (U.S., rev den), 944
– Review standards, abuse of discretion review that failed to defer to plan administrator was improper de novo review, reinstatement of benefits reversed (4th Cir.), 52
– §510 interference, class claim that spinoff deprived transferred workers of benefits advances (N.D. Ill.), 1006
– §4062(e), downsizing, liability for facility shutdowns, PBGC steps up enforcement of final rule, 672
– Severance

– – Benefits properly withheld where employees voluntarily resigned after merger, pay cuts not constructive discharge (3d Cir.), 939
– – Excluding director in “critical” position from plan was non-arbitrary business decision based on adverse impact (M.D. Pa.), 1060

– Supreme Court labor docket, 2008-2009 term opens, 1329

ESTOPPEL

– Issue preclusion

See COLLATERAL ESTOPPEL

ETA

See EMPLOYMENT AND TRAINING ADMINISTRATION (ETA)

ETHICS

– Retaliation, N.Y., journalist's conflict not protected, nonrenewal of contract no breach even if pretextual (7th Cir.), 1251

EUROPEAN UNION (EU)

– Noncompete agreements, enforcement of post-employment restrictions in global economy, U.S. and EU law compared, contrasted, 479

EVIDENCE

– ADEA

– – Admissibility of “me too” testimony from other employees depends on fact-intensive, context-specific inquiry (U.S., vac and rem), 281; text, 306
– – Mixed-motive jury instruction requires direct proof, award reversed, new trial ordered (8th Cir.), 689
– – Rehire restrictions are employment policy subject to disparate impact analysis, EEOC statistics establish prima facie case (8th Cir.), 841

– Asbestos liability, “procedural” nature of Ohio law requiring more threshold evidence than FELA saves it from preemption (U.S., brief sought), 854
– Emotional distress claimant's sexual abuse at 13 relevant to, admissible for diagnosis of present condition in sexual harassment claim (E.D. Tenn.), 1431
– FMLA, spoliation, bank that eliminated manager's job during leave sanctioned for deleting e-mail sought in discovery (N.D. Ga.), 397
– Hearsay, improper exclusion of testimony regarding deaf applicant's TRS-transmitted conversation with employer's agent triggers reversal (7th Cir.), 1247
– Overtime, showing that management altered time records negates need to show specific days and hours, claim revived (7th Cir.), 994
– Race bias

– – Diversity goal may be circumstantial proof, §1981 claim revived for white applicant rejected in favor of less qualified black candidate (5th Cir.), 497
– – “Same actor” evidence afforded no extra weight, damages upheld, punitive award reinstated (Cal. Ct. App.), 628

– Religious bias, owner's negative comments about headscarf on Muslim waitress direct proof, Title VII claims advance (E.D. Wash.), 1162
– Religious bias, tapes documenting that rehire conditioned on rejoining FLDS church admissible despite family ties, claim revived (10th Cir.), 687
– Sex bias, time-barred acts admissible to support timely claim, show pretext, revived (7th Cir.), 402
– SOX, fired training director shows no basis for reasonable belief in securities violation, evidence a “chain of speculation” (4th Cir.), 437
– ULPs, recognition legally withdrawn, statements, letter objective proof of majority-backed ouster (4th Cir.), 1056

EXECUTIVE ORDERS

– 13467, security clearance policies for federal employees and contractors, 973

EXHAUSTION OF REMEDIES

– Ohio, state workers can sue for bias without first exhausting administrative remedies under civil service law, fire chief's claim properly revived (Ohio), 1005
– Race bias, right-to-sue letter from Cal. agency sufficient basis for suit where plaintiff lacks but is entitled to have EEOC letter (9th Cir.), 435
– Sex bias, retaliation, VA doctor's promotion claim rejected for failure to exhaust EEOC remedies (1st Cir.), 184