Workplace Law Report Index-Summary

NAFTA

See NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH)

– Hexavalent chromium, draft criteria document recommends slashing airborne limit, 157
– Nanotechnology, proactive risk management recommended to combat work exposure, 1201

NATIONAL LABOR RELATIONS ACT (NLRA)

– Federal Aviation Act reauthorization

See LEGISLATION, FEDERAL, HR 915, S 1451

– Federal contractors, posting notices, DOL proposes rule to implement E.O. 13496, 1100
– Obama agenda on labor and employment law called aggressive, but pragmatic by ABA panelists, 1116
– Professor/arbitrator urges substantive, procedural fixes for “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

– Section 3(b), quorum

See NATIONAL LABOR RELATIONS BOARD (NLRB), subheading: Quorum

– Social media policies, monitoring of Facebook, MySpace sites, tips on avoiding liability, 1002
– ULPs

See UNFAIR LABOR PRACTICES (ULPs); UNFAIR LABOR PRACTICES (ULPs)

NATIONAL LABOR RELATIONS BOARD (NLRB)

– ADR, NLRB makes pilot program for ULP cases permanent, 474
– Appointments and personnel changes

– – Board vacancies, union attorneys Becker and Mark nominated to fill 2 of 3 spots, 610; Becker (D), Pearce (D), and Hayes (R) nominations sent to Senate, In Brief, 1001; no Senate action as recess begins, Chamber calls for hearing on Becker, In Brief, 1142; HELP panel approves all, McCain threatens hold on Becker, 1428
– – Chair, Obama taps Liebman (D), 157
– – Deputy assistant general counsel, Wilson appointed, In Brief, 1142

– Budget FY2009, omnibus spending bill

See LEGISLATION, FEDERAL, HR 1105

– Duty to bargain, nursing home not a “perfectly clear” successor required to bargain over changes, ULP ruling overturned (D.C. Cir.), 970
– E-filing rules expanded to allow service of process on other parties by e-mail, 202; e-filing changes implemented, summary, 289
– Jurisdiction, college affiliated with Presbyterian Church exempt, bargaining order not enforceable (D.C. Cir.), 389
– Liebman hopes for more dynamic approach to decisionmaking from board, labor law reforms from Congress, 336
– Performance report, FY2009, 2-member Board, 1422
– Political, economic realities create climate for labor law overhaul, attorneys agree, need for EFCA debated, 54
– Professor/arbitrator urges substantive, procedural fixes for “sick” NLRA, speakers debate need for reforms, Special Report, 846
– Quorum

– – Fla. nursing home seeks resolution of circuit split on 2-member authority (U.S., rev sought), 1293
– – Ga. hospital wins NLRA §3(b) challenge but circuits split, NLRB asks Court to uphold authority of 2-member board to issue rulings (U.S., rev sought), 1340
– – NLRA §3(b), circuits split on authority of 2-member NLRB to issue rulings (D.C. Cir.) (7th Cir.), 633; New Process Steel loses NLRA §3(b) challenge, appeals 2-member authority (U.S., rev sought), 743; NLRB asks Court to uphold 2-member authority to issue rulings (U.S., brief filed), 1340
– – Snell Isl. SNF d/b/a/ Shore Acres Rehab. & Nursing Ctr., 2-member NLRB has authority to issue decisions, orders under §3(b), DOJ memorandum (2d Cir.), 837
– – Two-member NLRB will continue to issue rulings, seek rehearing of D.C. Circuit decision, 706
– – Vacancy, two-member panel authorized to issue decisions, confidentiality ruling upheld (1st Cir.), 383; review sought on 2-member panel's §3(b) authority to issue rulings (U.S., rev sought), 1193

– Salting practices, data provided to Board as evidence under Oil Capitol exempt from disclosure to employers, regions advised in memo, 48

NATIONAL MEDIATION BOARD (NMB)

– Appointments and personnel changes

– – Chairmanship shifts to Dougherty, In Brief, 977
– – Obama nominates Puchala to seat held by chair Van de Water, 396; sworn in, takes office as chair, In Brief, 776
– – Third term, Hoglander reappointment cofirmed by Senate, In Brief, 1066

– Budget FY2009, omnibus spending bill

See LEGISLATION, FEDERAL, HR 1105

– E-filing, trial period extended to Aug. 10, switchover set for Sept. 8, 1001
– Information collection requests, board seeks comments on proposals relating to 6 different forms, 360
– Internet voting policy, representation elections, NMB mulls allowing hyperlinks, seeks comments, 1335

NATIONAL ORIGIN DISCRIMINATION

– Evidence, fax confirmation of timely EEOC filing sufficient to revive fired truck driver's claim (7th Cir,), 1191
– Fair Pay Act

See LEGISLATION, FEDERAL, HR 2151, S 904

– H-1B visa program, injunction granted, university must continue to employ Russian biologist while she pursues claims (W.D. Pa.), 842
– Harassment

– – Failure to investigate slurs, taunts, graffiti by co-workers, county jail officer has triable claims (N.D. Ill.), 665
– – Mexican-born teacher reassigned to teach lower grade with no loss of pay, benefits failed to show adverse action, retaliation (7th Cir.), 766

– Pyett progeny, “extraordinary deference” extended to arbitrator's finding that claimant was not qualified for warehouse position (D. Minn.), 872
– Res judicata, §1981 claim, Title VII dismissal precludes (3d Cir.), 1388
– Res judicata, full and voluntary participation in grievance arbitration of bias and retaliation claims under union pact precludes subsequent litigation (D. Colo.), 699
– Retaliation, Mexico-born box packer warned to “speak American” fired for poor performance, claims revived (10th Cir.), 469
– Voice of America, equal protection suit proceeds for Iran-born translator fired after criticizing Iraq war (D.D.C.), 1262

NATIONAL PARK SERVICE

– Prevailing wages, Alacatraz ferry operating under concession contract with NPS covered by SCA, operator's exemption claim rejected (DOL ARB), 204

NATIONAL TRANSIT SYSTEMS SECURITY ACT (NTSSA)

– DOL ARB decisions, briefly, 204

NATIONAL TRANSPORTATION SAFETY BOARD (NTSB)

– EPA, female safety director entitled to damages, costs for bad faith, willful violations (Fed. Cl.), 43

NATIVE AMERICANS

– Puyallup Tribe, FLSA overtime law applies to tribal land retail store that employs nonmembers, engages in interstate commerce, treaty no bar (9th Cir.), 568

NATURAL DISASTERS

– Volunteer Firefighter and EMS Personnel Job Protection Act

See LEGISLATION, FEDERAL, S 1025

NEBRASKA

– Arbitrator's reinstatement of state trooper fired for joining Ku Klux Klan offends public policy against race bias, vacated (Neb.), 325; (U.S., rev den), 886
– E-Verify use required for state or local contracts under new law, In Brief, 559
– Labor legislation, 2008, DOL reports, 236
– State actions summary, 586

NEGLIGENCE

– Asbestos liability, “procedural” nature of Ohio law requiring more threshold evidence than FELA saves it from preemption (U.S., rev den), 82
– Jones Act

See MERCHANT MARINE ACT

– Mold exposure, toxic tort claim fails for resident advisor at state university, workers' compensation exclusive remedy (U.S., rev den), 358
– Olsten Staffing Servs., ADA, contractual arrangement with biased effect (W.D. Wis.), 1353
– Pizza Hut, failure to obtain liquor license, appear in court, manager jailed for her own failure to appear in court has no claim against company (Ga. Ct. App.), 989
– Puerto Rico, ADEA, relatives' derivative tort claims mostly time-barred, but 1-year limit tolled until son reaches 21 (1st Cir.), 834
– Starbucks, privacy, stolen laptop contained personal data on 97,000, class action filed (W.D. Wash.), 284
– Wal-Mart, labor law violations, foreign workers' suit alleging failure to monitor suppliers rejected, no contractual duty (9th Cir.), 985

NEUTRALITY AGREEMENTS

– Freightliner, LMRA §302, agreement allowing UAW access to plant workers lacks tangible value required for bribery or extortion (4th Cir.), 13; (U.S., rev den), 1364
– RICO, Cintas suit against UNITE HERE, IBT rejected, “corporate campaign” to coerce neutrality/card check pact not attempted extortion (S.D.N.Y.), 352

NEVADA

– Collective bargaining, bill giving limited rights to state workers vetoed, 822
– State actions summary, 163; 238; 645; 716; 1071; 1149; 1206; 1303; 1433

NEW HAMPSHIRE

– Labor legislation, 2008, DOL reports, 236
– State actions summary, 89; 367; 529; 586; 1371
– Unemployment, DOL extends UI benefit period, 1141

NEW JERSEY

– Age bias, Law Against Discrimination (LAD) “over 70” exception improperly applied to contract nonrenewal, school official's claims revived (N.J. Super. Ct. App. Div.), 600
– Free speech, content-based sign ordinance barring use of rat balloon in labor protest on public sidewalk violates 1st Amend., overbroad, invalidated (N.J.), 226
– Identity theft, UPS whistleblower fired for refusing to use company Web sites due to privacy concerns has valid claim (D.N.J.), 636
– Independent contractor misclassifications, FedEx, 1431
– Independent contractor misclassifications, willful violations, stop-work penalty bill enacted, 1041
– Labor legislation, 2008, DOL reports, 236
– Prevailing wages

– – Construction contractor's deposition queries about claimants' immigration, residency, citizenship status unlawful (N.J. Super. Ct.), 750
– – Required on qualified energy projects, 1042

– Same-sex marriage, state law developments, attorneys discuss benefits impact, tax status consequences, other pitfalls, 612
– State actions summary, 25; 163; 238; 529; 645; 716; 783; 1071; 1149; 1275; 1303; 1371
– Whistleblowing, off-label marketing, pharmaceutical VP failed to link firing to protected activity (S.D.N.Y.), 1330
– Workers' compensation coverage, willful violations, stop-work penalty bill enacted, 1041

NEW MEXICO

– Labor legislation, 2008, DOL reports, 236
– Minimum wage, new law allows treble damages for violations, 558
– State actions summary, 25; 89; 163; 367; 445; 783; 925; 1149; 1371; 1433

NEW YORK

– Age bias

– – Rail commuter repeatedly arrested by transit police signed valid release of claims in RIF-related severance accord (E.D.N.Y.), 737
– – Waiver of RFOA affirmative defense not excused, RIFd employees' $4M class award reinstated (N.D.N.Y.), 700

– Crime victim restitution not merited where union local, benefit funds not “directly harmed” by construction official's criminal conspiracy (2d Cir.), 841
– Criminal arrest not proof of wrongdoing meriting discharge, NYC worker improperly fired while in police custody, reinstatement ordered upon dismissal of charges (N.Y. Sup. Ct.), 251
– Independent contractor misclassifications, FedEx, 1431
– Labor legislation, 2008, DOL reports, 236
– Long Island Head Start Child Dev. Servs., management rights, automatic renewal (NLRB), 1393
– Lottery winnings withheld to offset public welfare payments no FLSA violation (N.Y. Sup. Ct.), 629
– Manslaughter, criminally negligent homicide, NYC crane rigger, firm indicted for 7 fatalities in 2008 crane collapse (N.Y. Sup. Ct.), 50
– NYC Dept. of Educ., Clean Air Act, whistleblowing, demoted maintenance worker's OSHA filing untimely (DOL ARB), 1118
– Penalties, faithless servant doctrine, forfeiture of CEO salary, bonuses (Mass.), 1418
– Race bias

– – Discipline, Latino police officers' contempt claims against NYPD fail where “substantial steps” taken, statistics lacking (2d Cir.), 316
– – Disparate impact, written exams for NYC firefighter applicants not adequately job-related, no business necessity shown (E.D.N.Y.), 1056

– Retaliation, TRO barring NYCPD internal affairs department from investigation or discipline related to officers' FLSA suit at issue, remanded for explanation (2d Cir.), 192
– Same-sex marriage, state law developments, attorneys discuss benefits impact, tax status consequences, other pitfalls, 612
– Sex bias, stereotyping, male employee forced to resign over unconfirmed sexual harassment complaint has triable claim against county for constructive discharge (2d Cir.), 738
– Sexual harassment, emotional distress, fault split evenly between physician and hospital, nurse awarded record $15M (N.Y. Sup. Ct.), 321
– State actions summary, 25; 89; 163; 238; 716; 783; 851; 1071; 1206; 1275; 1371; 1433
– Unemployment, DOL extends UI benefit period, 1141
– Unpaid contributions, corporate officer with no control over 401(k) plan assets not liable as fiduciary under ERISA, but state UCC imposes personal liability for returned checks (2d Cir.), 1175
– Wage and hour

– – New York Wage Watch, state labor department joins with unions, community groups to monitor wage law compliance, plan summarized, 144
– – NYC Children's Servs., overtime, city agency's private nonprofit independent contractor not a FLSA-covered “enterprise” (2d Cir.), 1127
– – Overtime

– – – Fuel oil truck dispatchers may sue for back pay, liquidated damages, administrative exemption not shown (E.D.N.Y.), 220
– – – Pharmaceutical salespersons exempt under FLSA, Cal., N.Y. laws (S.D.N.Y.), 109

– – Pay and payroll violations, Apparel Industry Task Force confiscates and tags goods, equipment in overnight raid on uniform maker, holds pending restitution to underpaid workers, 598
– – Retaliation penalties hiked, liquidated damages available under new law, 1242
– – Retaliation, TRO barring NYCPD internal affairs department from investigation or discipline related to officers' FLSA suit at issue, remanded for explanation (2d Cir.), 192

NEW YORK STATE NURSES (NYSNA)

– Community Med. Ctr., ULPs trigger new NYSNA election for RNs (NLRB), 804

NEWSPAPER GUILD (TNG-CWA)

– Local 37194, union business, protected activities, publisher's no-solicitation ban discriminatorily applied to e-mails, discipline was ULP (D.C. Cir.), 959

NEWSPAPERS

– Chinese Daily News, protected activities, deposition query about union views was ULP, as were button ban, overbroad solicitation and distribution policy (NLRB), 45
– Denver Newspaper Agency, full and voluntary participation in grievance arbitration of bias and retaliation claims under union pact precludes subsequent litigation (D. Colo.), 699
– Globe Newspaper, LMRA §301, arbitrator's award of “second-generation” interest arbitration lacked employer consent, vacated (D. Mass.), 1168
– Gopher News, ERISA fiduciary breach, delivery drivers terminated under adverse selection rule may proceed against Central States Fund with leave for additional discovery (D. Minn.), 232
– Media Gen. Operations d/b/a Tampa Tribune, concerted activity, profane pressman forfeited NLRA protection through verbal attack on executive, NLRB overruled (4th Cir.), 423
– Register-Guard, union business, protected activities, publisher's no-solicitation ban discriminatorily applied to e-mails, discipline was ULP (D.C. Cir.), 959
– Tribune Publ'g, ULPs, newspaper that agreed to dues checkoff after GCC-IBT pact expiration cannot unilaterally reverse decision without bargaining (D.C. Cir.), 602

NIOSH

See NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH (NIOSH)

NLRA

See NATIONAL LABOR RELATIONS ACT (NLRA)

NLRB

See NATIONAL LABOR RELATIONS BOARD (NLRB)

NMB

See NATIONAL MEDIATION BOARD (NMB)

NONCOMPETE AGREEMENTS

– Adult nightclub operator's bid for TRO to protect “trade secrets” regarding guests, entertainers rejected, no irreparable injury shown (S.D. Ill.), 387
– Bemis, damages of $80K upheld where employer reneged on promised payment of base salary in executive's agreement (8th Cir.), 324
– Foreign nurse employment contract fair and favorable to employee, not unconscionable, resignation was breach (Tenn. Ct. App.), 1234
– Information key factor, as communication technology speeds ahead, attorneys cautioned to stay informed, 484
– Insurance firm's overbroad covenant unenforceable, no breach of solicitation, confidentiality clauses (Ga. Ct. App.), 1029
– Management consultant working for competitor breached pact, but $1.7M in “make-whole” damages unsupported by proof of actual losses, reversed (11th Cir.), 1136
– Solicitation, Hair Club For Men wins injunction blocking former employees, competitor from contacting its clients for duration of lawsuit (Texas Ct. App.), 964

NONPROFIT ORGANIZATIONS

– Child-care institution not FLSA-covered enterprise despite payroll link to employee leasing firm, Wage and Hour Op. Letter, 399; text, 415
– N.Y. Foundling, overtime, independent contractor for NYC social services agency not a FLSA-covered “enterprise” (2d Cir.), 1127

NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA)

– Cross-border trucking

– – Obama vows to end dispute with Mexico, create green jobs, legalize immigrants, meeting with Calderon summarized, 581
– – Omnibus spending bill

See LEGISLATION, FEDERAL, HR 1105

NORTH CAROLINA

– Labor legislation, 2008, DOL reports, 236
– Negligence, toxic tort claim fails for resident advisor at state university, workers' compensation exclusive remedy (U.S., rev den), 358
– State actions summary, 163; 238; 367; 529; 586; 716; 783; 925; 1206; 1303
– Unemployment insurance coverage expanded, In Brief, 1043
– Unreasonable searches, “reasonable suspicion,” county's random drug test policy unconstitutional (N.C. Ct. App.), 772

NORTH DAKOTA

– Labor legislation, 2008, DOL reports, 236

NORTHERN MARIANA ISLANDS

– Immigration, guestworkers, DHS delays application of federal laws, 474; amendments, DHS, DOJ interim final rule, 1458

NOTICE AND NOTIFICATION

– Alert Laid-Off Employees in Reasonable Time (ALERT) Act

See LEGISLATION, FEDERAL, HR 2077

– Drug testing, delay in written notice of confirmation policy violated state law, but outcome not affected, claimant entitled to legal fees but not damages (Iowa), 116
– ERISA

See ERISA

– FMLA

See FAMILY AND MEDICAL LEAVE ACT (FMLA)

– NLRA rights, posting notices, DOL proposes federal contractor requirements, 1100
– WARN Act

See WORKER ADJUSTMENT AND RETRAINING NOTIFICATION (WARN) ACT

NTSB

See NATIONAL TRANSPORTATION SAFETY BOARD (NTSB)

NTSSA

See NATIONAL TRANSIT SYSTEMS SECURITY ACT (NTSSA)

NURSES

– ADA, driving not major life activity, county nurse who resigned due to anxiety after car accident lacks disability, bias claims (7th Cir.), 598
– Antitrust, wage suppression, class certification denied (N.D. Ill.), 1350
– H1N1 virus (Swine Flu)

See H1N1 VIRUS

– Natl. Staff Nurses Union, Local 141, majority status presumed, first bargaining session starts clock, withdrawal of recognition during certification year was ULP (9th Cir.), 322
– Nurse and Health Care Worker Protection Act

See LEGISLATION, FEDERAL, HR 2381

– Overtime, FLSA, hourly base rates vary for 8-hour, 12-hour shifts (9th Cir.), 1444
– Reproductive services, rights of conscience

– – HHS issues final rule intended to protect health care workers, summary, 22
– – OMB reviewing proposed regulation to rescind Bush-era rule, comments summarized, 330
– – Rescission proposed due to opposition, HHS seeks comments, 359

– Vintage Health Resources, foreign nurse employment agreement fair and favorable to employee, not unconscionable, resignation was breach (Tenn. Ct. App.), 1234

NURSING HOMES

– Care Ctrs., FMLA, retroactive termination of health benefits, $85K judgment confirmed for dietary consultant who gave birth to triplets (7th Cir.), 661
– Care Initiatives, causation standards, ADEA, state claims proceed (N.D. Iowa), 1415
– Church Homes, d/b/a/ Avery Heights, ULPs, secret strike replacements, failure to reinstate (U.S., rev den), 1404
– Epworth Villa, nurse's aide lawfully fired for providing unredacted patient records to EEOC as proof of bias (U.S., rev den), 333
– Flushing Manor Care Ctr., laundry aide fired for insubordination, profanity, threats to co-workers, not race bias (S.D.N.Y.), 1023
– H1N1 virus (Swine Flu)

See H1N1 VIRUS

– Kingsbridge Heights Rehabilitation Care Center, ULPs, §10(j) bargaining order, reinstatement order for SEIU strikers upheld (2d Cir.), 744
– Laurel Baye Healthcare of Lake Lanier, 2-member NLRB lacked NLRA §3(b) authority to issue rulings (D.C. Cir.), 633; steel company asks Supreme Court to resolve split on 2-member authority (U.S., rev sought), 743
– OSHA Site-Specific Targeting, nursing homes targeted for 2009 inspections, 1267
– Regal Health & Rehab Ctr., interrogation, threats, firing of pro-union workers likely ULPs, ordered to recognize, bargain with SEIU (N.D. Ill.), 703
– S&F Market St. Healthcare, not a “perfectly clear” successor required to bargain over changes, NLRB ruling overturned (D.C. Cir.), 970
– Snell Isl. SNF d/b/a/ Shore Acres Rehab. & Nursing Ctr., 2-member NLRB has authority to issue decisions, orders under §3(b), DOJ memorandum (2d Cir.), 837
– Snell Island SNF d/b/a/ Shore Acres Rehab. & Nursing Ctr., NLRB quorum, facility seeks resolution of circuit split on 2-member authority (U.S., rev sought), 1293

NYSNA

See NEW YORK STATE NURSES (NYSNA)