Brushing off First Amendment objections, a federal court has ruled that a union can be sued for “retaliation” after it defended itself in print against a lawsuit by two of its members. [Eugene Volokh]
{ 1 comment }
Posts tagged as:
workplace
- UK panel declines to ban “I like gin” tea ad [Campaign]
- Do pics of tree-shaped air fresheners violate trademark rights of product marketer? [PoL]
- Man’s EU trademark for “Keep Calm and Carry On” raises hackles [Maria Bustillos, The Awl]
- When was the last time Congress chose to repeal a law restricting employers? Surely more recently than with the Portal to Portal Act of 1947 [Fox, Jottings]
- NYC: “City’s Top Lawyer Details Payouts of $561 Million in Lawsuits” [NYT]
- Calif. Gov. Brown vetoes attorney-backed bill widening fee entitlement where claimed damages not recovered [CJAC]
- Ira Stoll has been assembling a list of cost-free measures to help the economy, #17 is the proposed EPA-curbing Cement Regulatory Relief Act, #13 is “Eliminate requirements for legal ads in print newspapers in connection with business formation.” [Future of Capitalism]
{ 1 comment }
A New Britain, Ct. police sergeant has failed to persuade a federal court that his employer violated his rights of “familial association” by requiring him to attend an out-of-state seminar [Daniel Schwartz] In a much-noted recent decision, U.S. District Judge Loretta Preska of the Southern District of New York found that the Bloomberg news organization’s alleged failure to accommodate employees’ wishes for work-life balance did not constitute a form of sex or other discrimination.
{ 2 comments }
I joined the host on Connecticut’s WTIC Thursday morning to discuss President Obama’s proposed ban on employer discrimination against unemployed job applicants:
For more on this bad proposal, check out Charles Lane, Washington Post (“really bad idea that will probably destroy jobs in a misguided effort to save them”); Richard Epstein/Hoover (“most ghastly” element of jobs plan), Mickey Kaus (“Worst idea in the speech? …a museum-quality case of liberal legalism ignoring the economic cost of the mechanisms of liberal legalism”), Steve Chapman (“may very well have a positive impact on hiring. Just not in America”), Neil Munro, Adler/Volokh, Business Insider, Ted Frank/PoL, NYT “Room for Debate”, Dan Indiviglio/The Atlantic (“While this is a lovely political talking point, it won’t cut unemployment and could even make matters worse for jobless Americans”), Atlantic Wire, Tim Cavanaugh/Reason, Jay Goltz/NYT “You’re the Boss” (“I don’t know whether to laugh or cry.”), National Review, Kerry Picket/Washington Times (Rep. Danny Davis, D-Ill.: “If it takes lawsuits to get work opportunities, then so be it”), earlier (& welcome Tim Cavanaugh/Reason “Hit and Run” readers).
{ 4 comments }
- “EEOC showing late summer spike in discrimination suits” [NLJ]
- In new Lamons Gasket case, NLRB generously protects unions from many secret-ballot decertification elections [Hyman] Some employers rename quickie-elections proposal “ambush elections” [ShopFloor; see also Hannah Bowen, CRC, PDF] “NLRB’s Pro-Big Labor Ruling Trifecta is Bad News for the Economy” [Ivan Osorio, CEI] Did NLRB have legal authority to issue rule requiring employers to post union-rights posters on pain of criminal penalties? [Schaumber/NRO via Ted/PoL]
- Wage and hour law roundup: Law clerks fail in bid for overtime pay [Above the Law] “U.S. Open Umpires Sue for Overtime” [Fox Rothschild] Lawsuit challenges unpaid Hollywood internships [NYT]
- Public sector labor reform: Let the lawsuits begin! [Daniel DiSalvo, Public Sector Inc.]
- “Verizon Settles EEOC Disability Suit Based on No-Fault Attendance Policy” [Workplace Prof]
- Just can’t win dept.: after white firefighters extract large settlement from city of New Haven over reverse discrimination, Second Circuit rules that black firefighters can sue the city over the same “validated” test [WSJ, Schwartz]
- Screening job applicants through personality tests: when is it legal? [Hyman]
- Way to discourage employers from offering sabbaticals: have courts construe them as deferred vacation benefits [Cal Labor] Way to discourage volunteers [Cain, FindLaw]
- No, rules Judge Preska, the law doesn’t obligate employers to provide work/life balance [Hyman, Greenfield, PoL]
- Another purportedly disabled firefighter fit enough to run an Ironman event [WITI] “Can you pay me under the table? I would lose my disability” [Coyote]
{ 1 comment }
New Department of Labor regulations will require, on pain of serious criminal penalties, regular disclosures by lawyers, consultants, advisers, website developers, P.R. firms, pollsters and many others whose activities might persuade employees not to sign union cards. (Current regulations require disclosures only regarding consultants who actually meet with employees, as opposed to generating information that might reach them.) The result will be to give the Jimmy Hoffas of the world a road map to put legal pressure on (maybe even “take out“) a wide range of consultants and back-office employees in areas like safety, productivity management and general HR (say, employee-handbook writing), many of whose activities have predictable impact on bargainable issues and worker inclination to unionize. [Labor Union Report](& Legal Ethics Forum)
{ 6 comments }
Please do regulate babysitting much harder, urges Coyote [earlier; see also]
The bill would also require employers of babysitters, i.e. parents, to prepare extensive paperwork and keep it on file for at least three years after a wage payment. Some critics say the obligation to provide periodic breaks would require families to hire a second sitter to relieve the first. Homeowners would be required to permit all-day domestic workers to prepare their own food in the family kitchen and would be forbidden to object to the workers’ choice of food. AB 889, sponsored by Assemblyman Tom Ammiano (D-S.F.) and grandly labeled the “Domestic Workers’ Bill of Rights,” has passed the lower house in Sacramento and will now be considered by the Senate. [NBC Los Angeles, Matt Welch, Sen. Doug LaMalfa, earlier] Last year New York made itself the first state to extend general workplace regulation to domestic employment.
{ 13 comments }
In a new Reason symposium on how to revitalize the American job market, I explain my answer to that question.
More: This set off a round of discussion on employment blogs including Jon Hyman (nominating FLSA for vaporization), Suzanne Boy (concur), Daniel Schwartz (leave laws), Suzanne Lucas (citing “the fabulous Overlawyered.com”), the ABA Journal, Tim Eavenson, Jon Hyman again, HR Daily Report, and Russell Cawyer. Also relevant on age discrimination laws: a June symposium in the NYT’s “Room for Debate” feature; ComputerWorld on age bias and IT.
{ 16 comments }
The once-envied Connecticut economy may be headed in that direction should its lawmakers continue to pile new burdens onto the state’s employers, or so I argue in my new Cato post.
AP: “Nearly every national [retail] chain is under legal attack in California for failing to provide ‘suitable seating’ for cashiers and other employees who are expected to spend most of their work day on their feet.” For more on recent plaintiff victories under California’s distinctive bounty-hunting labor law, see this April link.
{ 2 comments }
Per a Connecticut appeals court, looking at an employee and saying “Bang bang” does not, even when added to some other impolite conduct, rise to the level of “extreme and outrageous” behavior required to trigger a claim of intentional infliction of emotional distress [Daniel Schwartz]
{ 1 comment }
Will the law protect your right not to be fired if you shout profanities at your supervisor and throw things? Press coverage of the Americans with Disabilities Act (ADA) may ebb and flow, but the law’s protection of mental, emotional and behavioral disabilities continues to generate extreme results in workplace cases, as attorney James J. McDonald, Jr. has documented in a series of articles. I discuss at Cato at Liberty.
{ 1 comment }
Evil HR Lady and Ted Frank (more here) note some ambitious contentions in a lawsuit against Bayer Healthcare.
{ 5 comments }
“In the first fall at 6pm on August 21, 2006, Ms Hargreaves was going to get cough medicine from the fridge in her sock-clad feet…. The tribunal found both falls ‘arose out of Ms Hargreaves’ employment with Telstra’ which made them workplace injuries. Legal experts said the ruling could force employers to conduct workplace health and safety audits in the homes of the one-in-four Queenslanders who regularly work from their private residence for lifestyle reasons.” A law professor said employers “should not enter lightly into home work arrangements” because homes are “inherently dangerous places,” while a labor union spokeswomen said employers should not be able to “contract out” of safety and health obligations. [Courier-Mail; my related take a while back]
{ 5 comments }
Yesterday’s decision was the most momentous Supreme Court pronouncement on class actions in many years, addressing issues that go far beyond the case at hand. A sampling of early analysis:
* Some consideration of merits okay at certification stage. Paul Karlsgodt:
For more than 30 years, plaintiffs’ counsel and many courts have cited the Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) as prohibiting any examination of the plaintiffs’ claims on the merits at the class certification phase. Consistent with the majority trend in the lower federal courts, the Supreme Court’s decision in Wal-Mart Stores, Inc. confirms that a court should consider and resolve any issues of fact that are necessary to determine whether one or more elements of Rule 23 are satisfied, regardless of whether those issues may overlap or be identical to one or more issues to be decided in ruling on the merits of the plaintiff’s claims.
In its day the Eisen case was a milestone in the 1960s-1970s liberalization of class action procedure, and seemed at the time to authorize the plaintiff’s side to dream up all the actions it wanted while the defense side could not block the actions at the certification stage by pointing out that they were bogus on the merits. Russell Jackson bluntly assesses the case’s fate: “Stick a fork in Eisen v. Carlisle & Jacquelin. It’s done!”
* Statistical proofs can’t be used to bypass individualized defenses. At least in the context of back pay discrimination claims, all nine justices agreed that the company had a right to assert individualized defenses based on the details of particular cases rather than simply hand over a giant damage check based on some formula derived from statistical testimony. In particular, the Court said:
Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge, or modify any substantive right,” a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.
Russell Jackson draws out implications for actions far removed from the employment context:
This means that third-party-payor claims and consumer fraud class actions will not be able to prove causation or reliance using statistical proof like that proposed and rejected in McLaughlin v. American Tobacco Co., 522 F.3d 215 (2d Cir. 2008) in order to facilitate class certification. This is BIG NEWS!!!
* Subjective managerial discretion under less suspicion. Returning to the employment context, a key issue in the case is whether plaintiffs could assert the requisite common question by challenging Wal-Mart’s delegation of decentralized discretion to store managers over many issues of pay and promotion. The Court majority refused to entertain such a challenge. Michael Fox:
The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer’s promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).
If Fox is right, this is a giant step in the right direction, and helps correct a pernicious tendency in modern employment law to pressure large employers into maintaining more centralized (and inevitably more bureaucratic) personnel policies.
{ 1 comment }
