Friday, July 14, 2006

Frustrated States Pass Own Immigrant Employment Legislation

20060410_immigration_reform776729Here is a story from the USA Today from earlier in the week concerning the large amount of states that have passed immigrant employment bills in the absence of more comprehensive federal immigration reform:

At least 30 states have passed laws or taken other steps this year to crack down on illegal immigrants, often making it harder for undocumented workers to find jobs or receive public services.

Acting while Congress struggles to set policy regarding the nation's estimated 12 million illegal immigrants, states have enacted at least 57 laws, according to the National Conference of State Legislatures and a USA TODAY analysis. Among major themes of the state legislation: fining businesses that hire undocumented workers and denying such companies public contracts if they don't verify the legal status of employees.

Some examples of state laws in this area include:

•A Colorado law enacted in June prohibits awarding state contracts to businesses that knowingly employ illegal immigrants.

•A Louisiana law approved in June subjects businesses that have state contracts and more than 10 employees to fines if they don't fire workers known to be undocumented.

•A Georgia bill enacted in April has a phased-in requirement that public employers and government contractors and subcontractors verify information on newly hired workers through a federal program.

As House and Senate negotiators remain deadlock over the appropriate contours of federal immigration legislation, I suspect that we will see a lot more states entering the immigrant employment fray in the coming months.


July 14, 2006 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Employer Cash or Rebate Incentives for Employees are Taxable Compensation

Irslogo_1Here is an interesting decision by the Internal Revenue Service (IRS) involving an issue at the intersection of employment and tax law.  On the employment side, when it comes to different forms of compensation an employer provides to its employees, one focuses under the Fair Labor Standards Act (FLSA) on whether certain types of compensation are includable for purposes of determining a non-exempt employees regular rate of pay.  Such determinations are crucial for purposes of figuring out what overtime payments are due to employees.

However, there are also tax consequences when employers decide to give certain types of compensation to employees, including cash incentives or rebates to employees to persuade them to engage in certain activities like purchase an environmentally-friendly car.  As Paul Caron at TaxProf blog explains, such incentives are considered compensation, subject to normal income taxation:

Press reports note that Google, Bank of America, Timberland, and other companies provide “rebates” or cash incentives to their employees to encourage them to purchase environmentally friendly hybrid cars.  The IRS warned today (IR-2006–112) that those companies must treat the payments as garden variety taxable compensation to their employees:

Employers should include the cash incentive amounts in employees’ compensation reported on year-end Form W-2 earnings statements. The cash incentives also are subject to income tax withholding and employment tax. The tax code provides for an exclusion from income for employee discounts only if the employer produces the product and certain other requirements are met.


July 14, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Scary Employer of the Week: Naomi Campbell

Runwaymodelnaomicampbell_1Clearly, this is not someone who you would want to work for (from Yahoo! News):

Naomi Campbell was sued Thursday by another former employee, this one a young Florida woman who claims the supermodel abused her verbally and physically on three continents.

Amanda Brack, 20, of Fort Lauderdale, Fla., accused Campbell of assault, battery, false imprisonment and infliction of emotional distress in incidents that started a month after she began working for her in February 2005, court papers say.

Brack's lawsuit was filed while Campbell, 35, was in plea negotiations with Manhattan prosecutors about an assault charge. Campbell was accused of throwing a cell phone at one of her employees in January in a dispute over a missing pair of jeans.

Campbell has called that allegation "completely untrue." But the housekeeper, Ana Scolavino, was treated for an injury to the back of her head, and prosecutor Shanda Strain announced that she and the model's lawyer were in plea talks.

Wow, accosted on three continents!  Nowhere to run, nowhere to hide. Let's just say that those nasty fashion executives have nothing over top run-way models when it comes to treatment of other people, including their employees.


July 14, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Thursday, July 13, 2006

Posner and Laying Dictum to Rest II

Posner_richard_1In the area of employment discrimination law, apparently Judge Posner of the 7th Circuit Court of Appeals has some old scores to settle. Last week, it was laying the dictum to rest concerning the "insufficient to motivate" standard for Title VII pretext cases.

This week the good judge has chosen to tackle an even more broad topic in the form of the distinction between the amount of  "direct evidence" versus "circumstantial evidence" a plaintiff needs to prove a prima facie case under Title VII.

Here is some of what Judge Posner has to say in the case of Sylvester v. SOS Children, No. 05-4219 (7th Cir., July 12, 2006), a rather run-of-the-mill Title VII sexual harassment/retaliation claim, on the distinctions between direct and circumstantial evidence:

Read literally, the passage just quoted from Stone would defeat Sylvester’s use of the “direct” method because the passage says that the method requires “direct evidence,” defined in the passage as “evidence that establishes [a proposition] without resort to inferences from circumstantial evidence.” This is a misleading dictum. What is true is that the direct method does not utilitize the specific circumstantial evidence that the plaintiff presents when he uses the indirect method of establishing discrimination. But if he can prove by means of circumstantial evidence “that he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which he complains,” that is fine, as most of our cases, sensibly disregarding the dictum in Stone, properly assume.

The distinction between direct and circumstantial evidence is vague, 1 John H. Wigmore, Evidence § 25, at p. 953, but more important it is irrelevant to assessing the strength
of a party’s case.

But actually all evidence, even eyewitness testimony, requires drawing inferences; the eyewitness is drawing an inference from his raw perceptions. “All evidence is probabilistic, and therefore uncertain; eyewitness testimony and other forms of ‘direct’ evidence have no categorical epistemological claim to precedence over circumstantial or even explicitly statistical evidence.” Milam v. State Farm Mutual Automobile Ins. Co., 972 F.2d 166, 170 (7th Cir. 1992). Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling—may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy
of the eyewitness’s recollection as well as on his honesty.

As I asked with the previous "Posner laying dictum to rest" post, is this mere quibbling that actually serves to obfuscate the issue at hand or a helpful clarification for future Title VII discrimination and retaliation cases?

Hat Tip:  How Appealing


July 13, 2006 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Controversial NLRB Decision on Supervisory Status on the Way

Nlrblogo_1Brent Hunsberger at The Oregonian At Work blog reports (based on an article from the San Francisco Chronicle) that labor rights activists are gearing up to protest what it is likely to be an extremely damaging decision to employee workplace rights from the NLRB concerning the scope of who is considered a statutory employee under Section 2 of the National Labor Relation Act (NLRA). 

Generally, supervisors are not considered to be employees for NLRA purposes and thus, cannot take advantage of the labor rights encapsulated by Section 7 of the Act.  By expanding the scope of the supervisory definition under the NLRA, as the NLRB is expected to do, the result is that potentially millions of workers will lose their rights to self-organization, to engage in collective bargaining, and the ability to undertake protected activity for mutual aid and protection.

Brent writes in his post:

Unions nationwide are drawing attention this week to an upcoming decision by the National Labor Relations Board. The board is considering three cases, known collectively as the Kentucky River cases and listed at the bottom of this webpage, that could reclassify certain employees as supervisors, ending their rights to organize under a union contract. The Economic Policy Institute, which advocates for workers, estimates the decision will directly impact 1.4 million workers and possibly as many as 8 million workers in fields as diverse as construction, media, computing and accounting. Charge nurses especially appear vulnerable.

When the Kentucky River cases are decided by the NLRB, we will have more analysis of the decision.


July 13, 2006 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Antsy Airlines Pressure Congress on Pension Bill

Plane_commercial_2Update:  ERISA on the Web has this further update which suggests that a completed pension reform bill may soon be on its way to the President for his signature.

The Washington Post this past Sunday had an interesting article on how anxiety-ridden, bankrupt U.S. airline companies are ramping up pressure on Congressional negotiators to give them pension relief in the reform legislation now being considered by a congressional conferees.

According to the article:

Bankrupt U.S. carriers Northwest Airlines and Delta Air Lines have stepped up pressure on Congress to finish pension legislation that would give them more time to fund plans that are billions of dollars in the red and in danger of termination.

Top executives have lobbied lawmakers and written letters in recent weeks to push House-Senate negotiators trying to craft a final bill.

The companies are using the financial and time pressures of Chapter 11 reorganization as leverage to speed congressional negotiations that seasoned participants on Capitol Hill have characterized as agonizingly slow.

Of course, it goes without saying that many more individuals and companies than those involved with the airlines are going to be affected by comprehensive pension reform.  Nevertheless, this may be one of those instances that paradigmatically illustrates public choice theory in American politics, where those with the most concentrated interests and the most money to distribute can have the biggest impact on legislation, to the detriment of society at large.

Let's hope that Congress does not cave to this pressure. But I'm not holding my breath.

Hat Tip:  ERISA on the Web


July 13, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Fired for Being "So Big and Sloppy"

Weightscale_1Big Fat Blog has a story (through Newsday) of a New York City school teacher who was apparently fired for his sheer size.   Michael Frank, who is 6' 4" and 325 pounds, was fired from his job even though he was considered a good teacher and recently received numerous positive performance reviews.  He claims that his superior told him that although his lesson plans were well-executed and well-planned, that he was just "so big and sloppy," and that his obesity was not conducive to learning.

OK, so we have a clear case of an employee being fired for being obese. What remedies?  Well, the disability route is probably not going to work unless one could show morbid obesity with complications, and that does not seem the case here. You might also try a sex discrimination angle, but there would have to be evidence that obese women were treated differently.  Finally, you could try to sue under the common law of wrongful discharge, but unless you have contractual just cause protection, you would also be out of luck. It sounds like because this guy was pre-tenure, he did not have any applicable just cause protections that applied to him.

So what's left? Perhaps a public policy tort? Should there be a separate claim for appearance discrimination in cases such as these?


July 13, 2006 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Pennsylvania Increases Its Minimum Wage

Graphup_1The Governor of Pennsylvania, Ed Rendell, this past Sunday signed legislation which raises the minimum wage in the Commonwealth from $5.15/hr to $7.15/hr.

The law works this way:

Under the new law, Pennsylvania's minimum wage will rise to $6.25 an hour on Jan. 1, 2007, then to $7.15 an hour on July 1, 2007.

The increase will take effect more slowly for employers with the equivalent of 10 or fewer full-time employees, although franchises of larger chains will not qualify for that exemption. Employers that do qualify will pay $5.65 an hour beginning Jan. 1, 2007; $6.65 beginning July 1, 2007; and $7.15 on July 1, 2008.

Rendell said the increase, one of his top election-year priorities, was "enormously gratifying." In addition to raising the wages of those making the current minimum, he said it would have the effect of pushing up salaries for those who now make $7 to $8 per hour.

Two points: (1) passage of the raise of the minimum wage again proves what a popular issue this can be for Democrats in tough election fights; and (2) I really like the way the increase comes in at a slower rate for smaller employers, given them time to adjust to the added labor costs.

And as always, I will be watching closely to see if the raise of the minimum wage in Pennsylvania has adverse effects on the working poor in that state, as opponents of raising the federal minimum wage frequently argue will happen in such scenarios.


July 13, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 11, 2006

Jailhouse Blues

Jail_1The New York Times is reporting today on a Fifth Circuit decision holding that inmates are not entitled to minimum wage for work performed in prison.  The plaintiff alleged that his work as a drying machine operator in prison was covered by the FLSA.  Although, as the court noted, inmates working outside prison for a private firm are considered employees under the FLSA, those working inside a prison are not considered employees.  Quoting a Seventh Circuit decision, the court held that, although the FLSA doesn't explicitly exclude prisoners, the statute:

is intended for the protection of employees, and prisoners are not employees of their prison. So they are not protected by the Act.  People are not imprisoned for the purpose of enabling them to learn a living. The prison pays for their keep.  If it puts them to work, it is to offset some of the cost of keeping them, or to keep them out of mischief, or to ease their transition to the world outside, or to equip them with skills and habits that will make them less likely to return to crime outside. None of these goals is compatible with federal regulation of their wages and hours. The reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress.

Nothing surprising in the outcome of this one, particularly because the plaintiff was doing work for the operation of the prison itself.  I doubt the result would be different, but the rationale given is less persuasive when prisoners perform work for a prison's commercial enterprises.  Competing businesses have long protested about getting undercut by prison labor, although the solution is probably not to treat prisoners as employees under the FLSA.


July 11, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently-Published Scholarship: Symposium on the American Worker


Notre Dame Journal of Law, Ethics & Public Policy
Symposium on The American Worker
Volume 20, No. 2, 2006

Barbara J. Fick, Foreword, p. 513.


  • Charles I. Cohen, Joseph E. Santucci, Jr., & Jonathan C. Fritts, Resisting Its Own Obsolescence - How the National Labor Relations Board Is Questioning the Existing Law of Neutrality Agreements, p. 521.
  • Matthew W. Finkin, Employer Neutrality as Hot Cargo: Thoughts on the Making of Labor Policy, p. 541.
  • John D. Mueller, How Does Fiscal Policy Affect the American Worker?, p. 563.
  • David L. Gregory, Why Not a General Strike?, p. 621.
  • Joan T.A. Gabel, Nancy R. Mansfield, & Gregory Todd Jones, The Peculiar Moral Hazard of Employment Practices Liability Insurance:  Realignment of the Incentive to Transfer Risk with the Incentive to Prevent Discrimination, p. 639.
  • Sarah Helene Duggin, The Ongoing Battle Over Weingarten Rights for Non-union Employees in Investigative Interviews: What do Terrorism, Corporate Fraud, and Workplace Violence Have to do with It?, p. 655.
  • Maria Sophia Aguirre, Contributions to Family Income:  Proportions and Effects, p. 719.
  • Alison McMorran Sulentic, Now I Lay Me Down to Sleep: Work-Related Sleep Deficits and the Theology of Leisure, p. 749.


  • Elaine L. Chao, 21st Century Workforce: Change, Challenge & Opportunity, p. 785.
  • José H. Gomez, All You Who Labor: Towards a Spirituality of Work for the 21st Century, p. 791.
  • Tim Kane, The Terrifying Liberation of Labor, p. 815.
  • Tibor R. Machan, Jobs in a Free Country, p. 835.


  • Paul C. Mishler, Trade Unions in the United States and the Crisis in Values: Towards a New Labor Movement, p. 861.
  • Jackie Smith, Economic Globalization and Labor Rights: Towards Global Solidarity?, p. 873.


  • Hillary E. Maki, Trade Protection vs. Trade Promotion: Are Free Trade Agreements Good for American Workers?, p. 883.
  • Elisabeth J. Sweeney Yu, Addressing the Economic Impact of Undocumented Immigration on the American Worker: Private RICO Litigation and Public Policy, p. 909.


July 11, 2006 in Scholarship | Permalink | Comments (1) | TrackBack (0)

$25 Million Dollar Employee Invention Settlement

InventOne of the least understood areas of employment law is that dealing with invention agreements entered into between employers and their employees concerning ownership of patents developed during employment.  The law that applies in such situations comes from a combination of the common law (for instance, the shop-right rule), statutory law (in some states), and contractual arrangements entered into by the parties. 

Generally, employers try to insure that if they hire an employee to work on developing a certain product or invention, and that employee uses the employer's materials, resources, and money to do so, that the employee will have to assign the invention to the employer at the end of the day.  And even when the common law does not require the assignment of the invention, employers often enter into contracts with their employees requiring them to assign any invention to the employer developed while working for the company.

It seems such a contractual relationship existed between the University of Alabama at Huntsville and one of its professors.  According to this article in the Chronicle of Higher Education (subscription required):

The University of Alabama at Huntsville announced on Friday a $25-million settlement of its patent-infringement lawsuit brought against a former professor and the company that benefited from the patents.

Milton Harris, the former chemistry professor, and Nektar Therapeutics, a biopharmaceutical firm based in San Carlos, Calif., are to pay the university a lump sum of $15-million. In addition, Nektar will pay the university $1-million a year for 10 years. The university says it will use the money to build its endowment and finance more scholarships.

In its lawsuit, the university claimed that Mr. Harris had obtained patents for work he had done at the institution -- on technology designed to increase the effectiveness of drugs by extending the time they circulate in the bloodstream -- without informing the college. Mr. Harris enriched himself from the patents, the university stated, when he sold Shearwater, a start-up company the professor had created, to Nektar for $197-million. Mr. Harris is now the chief scientific officer for Nektar Alabama.

As can be seen from this case, a lot of money is at stake in cases like these and it is not surprising given the amount of research that occurs on campuses across the country that the university setting is where a lot of these lawsuits play out.


July 11, 2006 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Finkin on Employer Neutrality as Hot Cargo

Mfinkin_6Mattthew Finkin (Illinois) has recently published in the Notre Dame Journal of Law, Ethics, & Public Policy his piece entitled, Employer Neutrality as Hot Cargo: Thoughts on the Making of Labor Policy, 20 Notre Dame J. L. Ethics & Pub. Pol'y 541 (2006) (reprinted from The American Worker) (Westlaw subscription required).

Here's the Introduction from the article:

This Article is about the manufacture of labor policy at the hands of the National Labor Relations Board (NLRB). The question presented concerns the Board's role in accommodating a statute, whose last major legislative reconsideration took place nearly a half-century ago, to the business, social, and legal landscape of the twenty-first century. This is too large a question for a little Article. What follows is more a provocation than an effort at definitive resolution.

The portal of entry is the potential applicability of Section 8(e) of the Act, the prohibition of so-called "hot cargo" contracts to social clauses agreed to by unions and employers, whereby the latter commit themselves to contract only with businesses that observe fair labor standards; in particular, those willing to remain neutral and non-oppositional, when faced with union organizing. I will argue that a literal reading of that Section, currently signaled by the Board's General Counsel, is not commanded by the Act, is out of keeping with the tenor of the times, and would do a disservice to the Republic.

An important article to read as the NLRB and others grapple with the appropriateness of neutrality agreements, card check agreements, and other arrangements.


July 11, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Interesting Case on Successors-in-Interest Under FMLA

Scales_3Rosario Vega Lynn of the New Mexico Labor and Employment Law Blog sent this interesting post dealing with a novel issue under federal Family and Medical Leave Act (FMLA) law:

In a case of first impression in any circuit, the Sixth Circuit decided that, under the Family Medical Leave Act (FMLA), whether a company is bound by the FMLA depends on labor law not corporate law.   The Circuit also found it irrelevant (for FMLA purposes) that the purchasing company did not transfer assets or merge with the first company. 

The case is Cobb v. Contract Transport, Inc., No. 05-6196 (6th Cir. June 28, 2006). 

In the case, Contract Transport acquired a federal mail delivery contract after Byrd Trucking lost the contract.  Contract Transport hired many Byrd Trucking drivers but did not acquire Byrd or its assets.  When the employee, Cobb, needed time off from work for a gallbladder operation, Contract Transport terminated him.  The Sixth Circuit reversed the district court's decision to dismiss the case and ruled in favor of the employee.

Fascinating case. Thanks for the heads up, Rosario!


July 11, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 10, 2006

7th Cir: No Property Interest for Public Employee in Job Title or Job Responsibilities

Illinois_7Here's a public employment case concerning the scope of an employee's property interest under a constitutional procedural due process analysis.

In Atterberry v. Sherman, No. 04-4115 (7th Cir., July 7, 2006), the 7th Circuit considered the case of Jeffrey Atterberry:

a high level employee within the Illinois Department of Professional Regulation (the “DPR”).  After allegedly engaging in misconduct, Atterberry was reassigned to perform the duties of a low-level employee, all the while retaining his salary and job classification as before.

Atterberry sued under Section 1983, claiming that in being demoted to perform less prestigious work, he was deprived of a property interest without due process of law.   As the 7th Circuit pointed out, there was no such deprivation because:

But Illinois law only protects employees of the DPR against “demotion” or “discharge” without “cause.” . . . . In turn, the Illinois Administrative Code defines “demotion” as the
“assignment of an employee to a vacant position in a class having a lower maximum permissible salary or rate than the class from which the demotion was made."

The application of these provisions to the facts of this case leaves no ambiguity. Atterberry had no legitimate expectation grounded in state law that he would not be subjected to the sort of personnel action taken against him. He did have certain legitimate expectations; he could not be subjected to reduction in salary or rate. He was not deprived of these expectations. Consequently, he was not deprived of a cognizable constitutional property interest.

In short, and as Judge Ripple's concurrence points out more succinctly: "Mr. Atterberry can claim no valid property interest, rooted in state or contract law, in either his title or his job responsibilities."

Hat Tip:  Decision of the Day


July 10, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Recently-Published Scholarship

Images_50 Scottmoss_2 Gonzalez


  • William B. Gould IV (left), Kissing Cousins?: The Federal Arbitration Act and Modern Labor Arbitration, 55 Emory L.J. 609 (2006).
  • Scott A. Moss (center), Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoh erence of Employment at Will, 67 Pittsburgh L. Rev. 295 (2005).
  • Jarod S. Gonzalez (right), A Matter of Life and Death -- Why the ADA Permits Mandatory Periodic Medical Examinations of "Remote-Location" Employees, 66 Louisiana L. Rev. 681 (2006).


  • Lisa M. Benrud-Larson, Establishing a Substantial Limitation in Interacting with Others: A Call for Clearer Guidance from the EEOC, 90 Minn. L. Rev. 1791 (2006).
  • Marcus Wilbers, Alcohol-Related Car "Accidents"? The Eighth Circuit Moves Toward Policy Change in ERISA Litigation, 71 Missouri L. Rev. 471 (2006).


July 10, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Being a Scary Boss a Badge of Honor?

200pxthe_devil_wears_prada_coverWho says that movies like the Devil Wears Prada can't bring up important workplace issues? (OK, well maybe not important issues, but at least issues for water cooler conversation). reports that many in the know believe that the depiction of the nasty fashion company executive boss portrayed by Meryl Streep in the movie is dead-on.  Based on this, the article goes on to ask:

But there are scary, capricious bosses in every field. Which raises another set of questions: Just why do they get away with it? And should they?

Some analysts say that in certain fields, particularly creative ones, a difficult, mercurial personality can actually be a status symbol.

It can even be "a badge of honor" to be a domineering boss in fashion or entertainment, says Jeffrey Sonnenfeld, a senior associate dean at Yale's School of Management. "They stir up the pot. They are agitators for change." Of Priestly's young, fear-struck assistant in "Prada," he says: "Did she think she was going to work for a librarian?"

But not everyone agrees that such types of bosses should be lauded, or even tolerated:

[Take] Stanford professor Robert Sutton, an organizational psychologist. He's developed a whole philosophy, presented in an upcoming book, on bosses who are, well, jerks: They're a drain on society. They shouldn't be hired in the first place, and if they won't change their ways, they should be fired.

I know what type of boss I prefer.  Anyone actually enjoy working for the boss that "stirs up the pot"?


July 10, 2006 in Commentary | Permalink | Comments (0) | TrackBack (0)

An Employee's Duty to Disclose a Previously Latent (and Potentially Dangerous) Disability to His Employer

Car_truck_1Here's an interesting decision recently issued by the 9th Circuit concerning not only the obligations an employer has to reasonably accommdate a disabled employee, who until recently has not shown any manifestations of that disability, but also the obligation an employee has to disclose to his employer a previously latent and potentially dangerous disabling condititon.

In Dark v. Curry County, No. 04-36087 (9th Cir., July 6, 2006), Robert Dark, an epileptic, operated heavy machinery without incident for 16 years.  When his medication was adjusted, he suffered a seizure on the job and if it were not for some quick action by a co-worker, there could have been serious injuries to Dark and others. 

What makes this case noteworthy is that apparently Dark knew that there was a good chance of his suffering a seizure at work that day because he suffered an "aura" that morning which meant that he knew that there was a 50% chance that he would suffer a full-blown seizure that day. Nevertheless, he did not alert his employer of this information.

The employer fired Dark because it determined under the direct threat prong of the ADA that he posed a threat to the safety of himself and others.  Overturning summary judgment by the district court, the 9th Circuit found that Dark should be permitted to prove that he could have been reasonably accommodated by either being transferred to a less dangerous job or by allowing him to use sick leave until his medication could be further adjusted.

I think the Court is right in its technical application of ADA law here concerning direct threat and reasonable accommodation, but if Dark knew that there was a significant possibility of his having a seizure and went to work anyway and did not inform anyone, does that not give separate grounds for his being terminated for not being forthright with his employer?  The ADA does not immunize Dark under these circumstances, does it?

To me, then, this case is less about whether this employee deserved the protections of the ADA (which he may or may not be entitled to), and more about the employee's bad judgment in not informing his employer about his potentially danagerous condition which his employer had no reason to know about.

Ross' Employment Law Blog has further analysis of this case.  Ross' discussion of the case points out that it may be that the Court was less concerned about the issues that I highlight because the employer never really got its story straight about why it was terminating Dark in the first place.

But if the employer had been more clear that it was firing Dark not because of his disability, but because of his lack of judgment and irresponsibility in not informing others of his dangerous condition, could he then not be fired consistent with the ADA?  Different result if Dark's seizure ended up leading to someone else's death?

Hat Tip:  Decision of the Day


July 10, 2006 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Association of Corporate Counsel's Employment & Labor Law Committee

Acc_2James Baine, General Attorney for Murphy Oil Corporation of El Dorado, Arkansas (and University of Mississippi Law School graduate) writes to tell us about the Association of Corporate Counsel's 5,000 member Employment & Labor Law Committee.  James is currently serving as Chair of this organization.

Here's the mission statement from the group's webpage:

The mission and purpose of the Employment Labor and Law Committee shall be to act as a central resource vehicle for all ACC members with an expertise or interest in labor and employment law matters. It shall provide a network for its members to further keep current and consult on the latest case law and legislative and regulatory actions affecting labor and employment law.

The website itself is chalked full of information for corporate counsel involved in labor and employment law matters.  Some sections of their website include: Recent Developments in Labor and Employment Law, Upcoming Webcasts (currently featured is one on the recent Supreme Court Burlington Northern decision), a long distance education center, and an ERISA resource center.  There is also a listserve to which you can subscribe.

You can access the ACC Employment Labor and Law Committee website here.


July 10, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

CA Mediator Can Impose Terms of Initial Labor Contract for Farmworkers

Farmer_1Here's an interesting story from the LA Times about how California state agricultural labor relations law seeks to get around one of the trickiest issue in labor law: how to get parties to enter into a first bargaining contract when one party seeks to prevent that from happening:

A 2002 [California] state law grants [agricultural] workers who have voted to unionize the right to demand mediation if the union can't reach agreement on its first contract with a grower within 90 days. If after 30 days of mediation the two sides can't reach a bargaining agreement, the mediator can dictate the terms of any outstanding issues, essentially writing the contract. Either party can appeal the terms to the state Agricultural Labor Relations Board.

In a 2-1 vote, the 3rd District Court of Appeal in Sacramento ruled Wednesday that Hess Collection Winery in Napa must abide by the mediator-imposed terms of a contract with United Food and Commercial Workers Local 1096.

For those of you wondering how such a law can exist in light of the National Labor Relations Act (which does not permit this type of forced contract under Section 8(d)), the answer lies in the fact that the NLRA does not apply to agricultural workers and so states are free to legislate in this area.

As this ruling is likely to be appealed to the California Supreme Court, stay tuned to see if laws like this one may not only flourish under state agricultural labor law, but might also sow the seeds for further development in this area in private sector labor law.

Hat Tip: Daniel Mitchell on LERA Listserve


July 10, 2006 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Sunday, July 9, 2006

Top-5 Employment SSRN Downloads