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Employment Law Blog

Friday, February 16, 2007

HR 800 - Employee Free Choice Act - Reported Out of Committee

The Employee Free Choice Act, HR 800, is the bill that would require the National Labor Relations Board to certify unions as bargaining representative based on a “card check.”  This means unions can sign up employees via signed authorization cards which are easier to obtain than votes in a secret ballot election. Under current law, the employer can reject a card check as proof of the union’s representation, and demand the election, which is typically conducted by the NLRB.  The new Bill also would impose civil penalties for certain unfair labor pratices.  Finally, the Bill would set short timetables for negotiating a firist contract, with “interest arbitration” required if the parties do not come to agreement within a specified time. The Bill was just reported out of committee on February 14.  (“Happy Valentine’s Day, Unions!”)  Passage is likely in the House.  Unclear what will happen in the Senate.  According to this Reuters article, Vice Pres. Cheney says the President will veto the Bill if passed.

Posted by Patrick Della Valle on 02/16 at 11:01 AM
Labor Law

Week In Review (February 16, 2007)

Most Popular Federal Law Article

[url=“”>Unlocking the Power of Documentation: Why and How to Document.</A>
What would you say if I told you there is something that can help you improve employee performance, reduce the risk of being sued, and improve your case if an employee does sue? You would probably wonder what could hold such mystical powers.
Located On: Fredrikson & Byron, P.A.

Most Popular State Law Article

<a >Three Often-Overlooked and Potentially Costly Employment Requirements.</A>
Employers know they must comply with numerous state and federal laws. They also know that failure to do so can lead to significant monetary damages and/or other penalties, either by way of employee claims or enforcement actions initiated by state and/or federal agencies. This article highlights three often-overlooked and potentially costly employment requirements.
Located On: Fredrikson & Byron, P.A.

Most Popular Headlines

<a TARGET=“_blank”]Study: One ‘Bad Apple’ Employee Spoils A Workplace[/url]
CBS5 - February 14, 2007

Posted by Patrick Della Valle on 02/16 at 09:27 AM
Employment Law
Saturday, February 10, 2007

Ninth Circuit Explains “Regarded As” Claims under ADA and Rehab. Act

An employer’s acknowledgement that an employee has an “impairment” is not enough to support a claim that the employee is “regarded as” having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to “localize” sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton’s employment because she could not perform essential functions of her job. She claimed the contractor “regarded” her as having a disability.
The Ninth Circuit held:

to state a “regarded as” claim a plaintiff must establish that the employer
believes that the plaintiff has some impairment, and provide evidence that the
employer subjectively believes that the plaintiff is substantially limited in a
major life activity. If the plaintiff does not have direct evidence of the
employer’s subjective belief that the plaintiff is substantially limited in a
major life activity, the plaintiff must further provide evidence that the
impairment imputed to the plaintiff is, objectively, a substantially limiting

Applying this rule, the Court of Appeals decided that the employer’s actions demonstrated only that the employer regarded the employee as having an “impairment,” but there was no evidence the employer considered the impairment to be “substantially limiting” in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create “regarded as” liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act.

Posted by Patrick Della Valle on 02/10 at 03:46 PM
Disability Discrimination

AB 1825 Harassment Training Regulations Disapproved

The California Fair Employment and Housing Commission’s regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California’s Office of Administrative Law. The FEHC made the announcement here.

The OAL’s chief concern was that the regulations were not sufficiently “clear” in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.

The FEHC plans to modify the regulations and publish them for a brief public comment period before re-submitting them to the OAL. The FEHC’s modifications may have a significant effect on existing programs, depending on whether the new standards “raise the bar” on who is qualified to prepare or conduct AB 1825 training.

Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.

Posted by Patrick Della Valle on 02/10 at 03:41 PM
California Employment LawSexual Harassment
Friday, February 09, 2007

Week In Review (February 9, 2007)

Most Popular Federal Law Article

[url=“”>Finally: Relief from the 3 big FMLA headaches (pdf).</A>
Breathe a sigh of relief regarding the FMLA: The Department of Labor finally recognizes HR’s pain and is doing something about it.
Located On: Michael Best & Friedrich LLP

Most Popular State Law Article

<a >Incentive Pay Plan Violated Payment of Wages Act; Employer Ordered to Pay Treble Damages, Attorneys Fees, And Costs (pdf).</A>
In Ross v. Ligand Pharmaceuticals, Inc (Dec. 21, 2006), the South Carolina Court of Appeals ruled that an employer’s incentive compensation plan violated the South Carolina Payment of Wages Act because the plan did not provide a date certain when incentive payments would be made.
Located On: Nexsen Pruet

Most Popular Headlines

<a TARGET=“_blank”]Women flirt their way to top: survey[/url]
CNN-IBN - February 06, 2007

Posted by Patrick Della Valle on 02/09 at 08:45 AM
Week in Review
Wednesday, February 07, 2007

US DOL Extends Comment Period for FMLA Regulations

The U.S. Department of Labor has solicited comments about the current regulations implementing the federal Family and Medical Leave Act of 1993. The deadline for submitting comments has been extended from February 2 to February 16, 2007. Here’s how to go about sharing your views.

Posted by Patrick Della Valle on 02/07 at 03:41 PM
Tuesday, February 06, 2007

Ninth Circuit Court of Appeals Affirms Certification of Nationwide Class of Wal-Mart Employees

A couple of years ago, in Dukes et al. v. Wal-Mart, Inc., the U.S. District Court for the Northern District of California certified a class of female employees against Wal-Mart. The case was noteworthy because it is a nationwide class action in which the plaintiffs claim Wal-Mart discriminates against pretty much all of its female employees in setting compensation and promotion decisions. The class size was estimated at 1.5 million workers, and was defined as “All women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”

Wal-Mart appealed the class certification order. The Ninth Circuit heard oral argument in August 2005, and finally issued its opinion today. A three judge panel voted 2-1 to affirm the district court’s decision. Barring settlement or a successful decertification of the class, the huge class action against Walmart will proceed to trial at some point in the future.


Posted by Patrick Della Valle on 02/06 at 05:40 PM
Class Actions
Friday, February 02, 2007

Week In Review (February 2, 2007)

Most Popular Federal Law Article

[url=“”>OSHA Injury and Illness Summaries Must be Posted on February 1.</A>
This is a reminder that beginning February 1, employers who are not exempt from this requirement (see the list below) must post OSHA Form 300A, which is a summary of the total number of job-related injuries and illnesses that occurred in the preceding year. Employers must also provide information about the annual average number of employees and total hours worked during the calendar year to assist in calculating incidence rates.
Located On: Ford & Harrison LLP

Most Popular State Law Article

<a >Preemployment Testing Challenged under Antidiscrimination Laws,</A>
Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.
Located On: Shaw Valenza LLP

Most Popular Headlines

<a TARGET=“_blank”]‘At will’ employment has limits [/url]
Charleston Post and Courier - January 29, 2007

Posted by Patrick Della Valle on 02/02 at 08:30 AM
Employment Law
Friday, January 26, 2007

Week In Review (January 26, 2007)

Most Popular Federal Law Article

[url=“”>Religious Discrimination and Religious Accommodation in the Workplace.</A>
Sensitivity to religious issues in the workplace is growing. Consider the following scenarios.
Located On: Faegre & Benson

Most Popular State Law Article

<a >San Francisco Sick Leave Ordinance - City Officials Take Time to Address Ill Effects of Unwieldy New Law.</A>
Workers in San Francisco will begin accruing paid sick leave on February 5, 2007 despite numerous uncertainties raised by the San Francisco Sick Leave Ordinance. Donna Levitt, Division Manager of the Office of Labor Standards Enforcement (OLSE), the administrative agency in charge of enforcing the Ordinance, took time last week to meet with concerned business owners at two public hearings and addressed some of the outstanding issues.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]Resume lies you can’t get away with[/url] - January 19, 2007

Posted by Patrick Della Valle on 01/26 at 10:44 AM
Week in Review
Friday, January 19, 2007

Week In Review (January 19, 2007)

Most Popular Federal Law Article

[url=“”>UPS Violated ADA By Excluding Deaf Drivers Who Failed To Satisfy DOT Hearing Standard (pdf).</A>
One of the requirements applied by UPS to those applicants seeking to drive the familiar brown “package cars” was that they pass the physical examination (including a hearing exam) that the DOT requires of drivers of commercial vehicles of a gross vehicle weight rating (GVWR) of at least 10,001 pounds.
Located On: Proskauer Rose LLP

Most Popular State Law Article

<a >DWP Employee’s Retaliation Claim For Opposing Discrimination Should Not Have Been Dismissed (pdf).</A>
Eric Taylor, an electrical engineer employed by the Los Angeles Department of Water and Power, alleged that he suffered from multiple acts of retaliation by his supervisor (Bruce Hamer) after Taylor acted as a “supporting and material witness” on behalf of a former subordinate (Donald Coleman) in Coleman’s claim that he had been discriminated against when his employment was terminated for cause.
Located On: Proskauer Rose LLP

Most Popular Headlines

<a TARGET=“_blank”]A leader doesn’t have to be the boss[/url]
Asbury Park Press - January 15, 2007

Posted by Patrick Della Valle on 01/19 at 10:57 AM
Employment Law
Friday, January 12, 2007

Week In Review (January 12, 2007)

Most Popular Federal Law Article

[url=“”>Electrical Workers Local Must Pay Fines And Fees for Contempt of Appeals Court Orders.</A>
One of the nation’s largest local construction trades unions has been slapped with fines and fees exceeding $300 thousand for its contemptuous behavior in violating the federal labor law’s prohibition on “secondary boycotts.”
Located On: Jackson Lewis LLP

Most Popular State Law Article

<a >San Francisco’s Sick Leave Ordinance (pdf).</A>
Effective February 5, 2007, all employers with employees working within the City and County of San Francisco must comply with a new San Francisco ordinance, which requires employers—regardless of size—to provide paid sick leave. 
Located On: Fisher & Phillips, LLP

Most Popular Headlines

<a TARGET=“_blank”]Donald is Sued for Ages of Sin[/url]
New York Post - January 08, 2007

Posted by Patrick Della Valle on 01/12 at 11:36 AM
Employment Law
Friday, January 05, 2007

Week In Review (January 5, 2006)

Most Popular Federal Law Article

[url=“”>More than Job Demands or Personality, Lack of Organizational Respect Fuels Employee Burnout</A>
When Lakshmi Ramarajan worked for a non-profit organization several years ago, she noticed a high turnover rate among the employees. It wasn’t because of the work itself, but because of the organization’s management. “Employees were passionate about their jobs, but felt disrespected by their managers,” says Ramarajan. “The employees were belittled and patronized, and often publicly chastised for challenging the status-quo.” Complaints about the negative work environment “were met with inertia or rejected out of hand. Eventually a lot of employees left.”
Located On: Knowledge@Wharton (Reg Required)

Most Popular State Law Article

<a >Commission Agreements Held Enforceable</A>
The California Court of Appeal recently confirmed the enforceability of written commission agreements for employees paid by commission.
Located On: Proskauer Rose LLP

Most Popular Headlines

<a TARGET=“_blank”]Biggest workplace stories of 2006[/url]
Oregon Live - December 29, 2006

Posted by Patrick Della Valle on 01/05 at 11:02 AM
Week in Review
Friday, December 29, 2006

Week In Review (December 29, 2006)

Most Popular Federal Law Article

[url=“”>Calculating Eligibility for FMLA Leave: When Does 7 Equal 12?</A>
More employees may be eligible for leave under the Family and Medical Leave Act (FMLA) than many employers may contemplate, according to a federal appellate court decision in Boston. The Court in Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. Dec. 18, 2006), is requiring employers to include prior periods of employment—in this case, up to five years in the past—in determining whether employees qualify for statutory leave.
Located On: Jackson Lewis LLP

Most Popular State Law Article

<a >Attorneys Hired By Employers in New Jersey To Investigate Complaints Of Workplace Harassment May Be Sued By Complainant.</A>
In a case of great significance to attorneys hired by employers to investigate claims of workplace harassment, the United States District Court for the District of New Jersey has held in Spagnola v. Town of Morristown (Civ. Action No. 05-577, Dec. 7, 2006), that a plaintiff may sue the investigating attorney for negligent misrepresentation even where there is no attorney-client relationship between the complainant and the attorney. This ruling is consistent with state Supreme Court precedent which holds that the absence of an express assent to enter into an attorney-client relationship will not by itself preclude a finding that such a relationship existed. The ruling warrants careful conduct of investigations by counsel and mandates that they take certain precautions before, during and after such activities.
Located On: Littler Mendelson, P.C.

Most Popular Headlines

<a TARGET=“_blank”]Gossip about medical conditions can mean legal trouble for employers[/url]
Asbury Park Press - December 26, 2006

Posted by Patrick Della Valle on 12/29 at 10:07 AM
Week in Review
Friday, December 22, 2006

Week In Review (December 22, 2006)

Most Popular Federal Law Article

[url=“”>EEOC Vice Chair Tells U.S. Employers to Conduct Employment Law Audits to Prepare for EEOC’s Aggressive New Approach to Fighting Systemic Discrimination (pdf).</A>
This update discusses the Equal Employment Opportunity Commission’s (EEOC) aggressive new approach to combatting (often unintentional) “systemic discrimination” by U.S. employers. During a recent speech to Hogan & Hartson clients at the Employment Group’s 2006 Labor & Employment Seminar, EEOC’s Vice Chair identified essential action items to help all U.S. employers avoid or minimize liability for systemic discrimination. The update describes these action items and explains how the firm can help our clients implement them.
Located On: Hogan & Hartson LLP

Most Popular State Law Article

<a >Data Breach Class Action Filed for Negligence Related to Stolen Laptop.</A>
The emergence of a number of state laws aimed at protecting sensitive personal information and curbing the explosion of identity theft is beginning to have a foreseeable effect on workplace litigation. Such statutes are leading to negligence lawsuits filed by employees against their employers for failing to take appropriate measures to protect the computer databases, company laptops, and other repositories of confidential and personal information. These negligence claims have the potential to create significant exposure for employers, especially those that have not taken tangible steps to safeguard sensitive information.
Located On: Jackson Lewis LLP

Most Popular Headlines

<a TARGET=“_blank”]How big will your raise be in 2007?[/url]
CNN Money - December 20, 2006

Posted by Patrick Della Valle on 12/22 at 10:23 AM
Employment Law
Friday, December 15, 2006

Week In Review (December 15, 2006)

Most Popular Federal Law Article

[url=“”>Managing the Holidays: Make a List and Check It Twice (pdf).</A>
Now is the time for employers to make their holiday lists and check them twice. While it is the season to be jolly, it is also a time of year when employers face additional employment law concerns that arise from events unique to the holidays, including the company party and requests for time off. But with some advance planning, employers can start the new year on the right note.
Located On: Nexsen Pruet

Most Popular State Law Article

<a >Pennsylvania Minimum Wages Have Increased.</A>
On July 9, 2006, Governor Rendell signed legislation that substantially raised the minimum wage in Pennsylvania beyond the federal levels. These new rates go into effect January 1, 2007.
Located On: Buchanan Ingersoll

Most Popular Headlines

<a TARGET=“_blank”]Q&A: How to cope with jerks at work[/url]
Computer World - December 13, 2006

Posted by Patrick Della Valle on 12/15 at 11:22 AM
Week in Review
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