Wednesday, December 29, 2010
For those of you following the Brett Favre-Jenn Sterger case (for those who aren't, Favre--a former player for the Jets--allegedly sent a bunch of propositions and texts to a forrmer employee of the Jets, including texts of his more personal areas), the statute of limitations for a state sexual harassment case appears to have passed without her filing suit (the federal period had already passed). However, Sterger's attorney alleges that the filing period started later. Moreover, there are other possible claims, and the reaction from Sterger's attorney to the news that the NFL only fined Favre $50,000 for lying in the investigation, because the NFL couldn't establish that he sent the messages, suggests that there may be more to come.
Hat Tip: Alex Long
- Sarah Rajski, In Re Hydrogen Peroxide: Reinforcing Rigorous Analysis for Class Action Certification, 34 Seattle U. L. Rev. 577 (2011).
- Michael Costello, Crawford's Expansive Definition of Oppose Breathes New Life into Pure Third-Party Retaliation Claims Under Title VII, 34 Seattle U. L. Rev. 553 (2011).
Tuesday, December 28, 2010
The NLRB has recently invited briefs in Specialty Healthcare, with regard to how the Board should determine appropriate units in long-term care facilities. The Board's press release does a good job summarizing what's going on, so I'll let the Board speak for itself:
In 1989, the Board promulgated a rule specifying appropriate bargaining units in the healthcare industry. The final rule was limited to acute care facilities. The Board said that it would continue to determine if proposed units were appropriate in nursing homes and other non-acute care facilities “by adjudication.” In 1991, the Board decided Park Manor Care Center, 305 NLRB 872, indicating that in non-acute healthcare facilities it would “take a broader approach utilizing not only ‘community of interests’ factors but also background information gathered during rulemaking and prior precedent.” The Board specifically noted its expectation “that after various units have been litigated in a number of individual facilities, and after records have been developed and a number of cases decided from these records, certain recurring factual patterns will emerge and illustrate which units are typically appropriate.’’
The question of appropriate unit composition that is presented in this case revisits that 1991 decision. In seeking briefs, the Board majority observed that the long-term care industry has changed dramatically in the two decades since Park Manor was decided. Employment growth in the sector has been strong and, during the last decade, nearly 3,000 petitions for representation elections have been filed involving that industry.
The invitation to file briefs specifically asks eight questions, including what the interested parties’ experience has been under the Park Manor decision and whether its application has hindered or encouraged employee choice and collective bargaining. The full invitation detailing the questions, as well as any briefs that are submitted, will be posted on the Agency’s website, at the top of this page.
In dissent, Member Brian Hayes wrote that there is little evidence that current policies are problematic and that changing them could lead to a proliferation of units in the health care industry. He also criticized the majority for inviting briefs addressing the standard for unit determinations in other industries. Doing so, in his view, tests the limits of Board authority to make law on a case-by-case basis, rather than by rulemaking, and indicates that the majority is “contemplating a broad revision of a test for determination of appropriate units in all industries under our jurisdiction---a test that has stood for at least 50 years.” Member Hayes concluded that this review poses the risk of contravening “our own Act, express Congressional intent, the experience informing our health care rules, and the Administrative Procedures Act.”
As the dissent notes, this case could have major ramifications across multiple industries, so we'll definitely be watching this one.
Hat Tip: Dennis Walsh