For the Week of November 16, 2009

KEY CASES

1stCir: Union neutrality agreement voidable, but employer failed to timely object

A union neutrality agreement was not void, but only voidable, so that the arbitration clause in the agreement remained in effect and a union's motion to compel arbitration of a dispute was properly granted, concluded the First Circuit. In order to obtain necessary property development permits from the City of Boston, an employer entered into the neutrality agreement with a union that obligated it to recognize the union and to not object to the union or speak out against it, and to refer all unresolved issues to final and binding arbitration. When the union requested recognition based on signed authorization cards, the employer refused, alleging employee coercion. After arbitration, the employer was required to recognize the union and reinstate a discharged employee. The union sued to enforce the arbitrator's decision and the employer filed a separate action seeking a declaratory judgment that it was not bound to arbitrate. In its action, the employer argued that the agreement was void because the National Labor Relations Act preempted the neutrality agreement required by the city. However, rather than asserting that the city's requirement conflicted with the NLRA, the employer claimed that it entered into the agreement involuntarily. Seven years had elapsed since the parties entered into the agreement, and the employer enjoyed the benefits of the agreement, observed the circuit court. Consequently, the time in which the employer should have sought to challenge the agreement had long since passed, concluded the court. Because the challenge was not timely, the employer waived any right it may have had to void the agreement (South Bay Boston Mgmt, Inc v UNITE HERE, Local 26, November 12, 2009).

1stCir: Allegations in MCAD charge did not support employee's ADA claim

The allegations encompassed in an employee's charge filed with the Massachusetts Commission Against Discrimination (MCAD) did not support the ADA action he filed against UPS, held the First Circuit. In his original district court complaint, the employee, who suffered from various back, shoulder and arm ailments, asserted he was forced to work beyond his medical restrictions and denied reasonable accommodations. He later amended his complaint to allege that UPS had engaged in per se disability discrimination by adhering to an unwritten "100% medical release" policy. It is well-settled that an employee alleging discrimination must file an administrative claim with the EEOC or with a parallel state agency before a civil action may be brought, confirmed the First Circuit. Here, the employee failed to file a charge with the MCAD or EEOC relating to the "100% medical release" policy; his 2001 MCAD charge related "solely to UPS's alleged misunderstanding of his medical restrictions resulting in a failure to accommodate his disability," held the First Circuit. A reasonable investigation would not have uncovered UPS's alleged "100% medical release" policy claim, determined the court. Instead, the employee sought to apply the "scope of the investigation rule" far too broadly when he asserted that his suit may extend to claims that reasonably would have been uncovered during the MCAD investigation of, or have been collaterally related to, his MCAD charge. Further, the court held that the employee failed to demonstrate that he was disabled under the ADA during the relevant time period or that he suffered an adverse employment action since he selected his own work assignments (Thornton v UPS, November 12, 2009).

2ndCir: Product design specialist not professional employee exempt from overtime

A product design specialist (PDS) did not qualify for the "professional exemption" to the overtime pay requirements of the FLSA where he did not do work that required knowledge customarily acquired by a prolonged course of advanced intellectual study, ruled the Second Circuit. After losing his job in a reduction-in-force, the employee sued his employer, alleging that it had improperly and willfully classified him as an exempt professional. Although the employee worked for 20 years in the engineering field, no particular kind or amount of education was required for his position, and no PDS had a college degree. The circuit court observed that the typical symbol of professional training is an appropriate academic degree. If specialized education is not customarily required, the exemption cannot apply, regardless of the employee's duties. In this instance, it was undisputed that the job of a PDS required no formal advanced education. When employees in a position have no more than a high school diploma, then an employee is not an exempt professional under the FLSA, concluded the court (Young v Cooper Cameron Corp, November 12, 2009).

8thCir: Michael Vick's roster bonuses not subject to forfeiture under CBA

Bonus amounts paid to Michael Vick by the Atlanta Falcons prior to his guilty plea for federal dog-fighting charges were already earned and not subject to forfeiture, ruled the Eighth Circuit. Following Vick's guilty plea, the National Football league filed a grievance on behalf of the Falcons seeking a declaration that recovering a prorated portion of the bonuses based on the remaining years of Vick's contract would not violate the anti-forfeiture provision in a collective bargaining agreement and settlement agreement. The CBA created two distinct forfeiture tests: the years-performed test and the already-earned test. The already-earned test was met by the satisfaction of any conditions precedent other than performance. Since Vick satisfied the preconditions of making the 2005 and 2006 rosters, his failure to perform was irrelevant because he had fully earned the bonus payments when he met those provisions in his contract. Consequently, the district court did not err in holding that the Falcons could not recover a prorated portion of Vick's roster bonuses for the years he did not play football (White v NFL, November 10, 2008).

8thCir: Pension plan conversion to cash balance system didn't violate ERISA

Two retirees were not entitled to an award of damages based on their claim that the conversion of a pension plan to a cash balance system decreased their accrued benefits in violation of Section 204(g) of ERISA, ruled the Eighth Circuit. Originally, the employees each accrued benefits toward a defined benefits pension plan. That plan was amended and converted into a cash balance system prior to their retirements. At the time of the plan conversion there was no ERISA provision governing the creation of an opening cash balance. Consequently, the plan was free to set the opening cash balance as it wished, so long as the calculation did not decrease already accrued benefits in the original plan. Here, the cash balance plan did indeed preserve the amount of the accrued benefit, concluded the circuit court. The court observed that the pension plan calculated the present actuarial equivalent of the benefits accrued under the original plan, using the IRS's statutory rate of discount, and ensured that the lump-sum payout to the retirees was greater than that amount. Because the opening balance calculation did not determine the present value for purposes of making a distribution, the plan was not required to use the Internal Revenue Code §417(e)(3) discount rate (Sunder v US Bancorp Pension Plan, November 9, 2009).

10thCir: Court lacked jurisdiction over interlocutory appeal of denial of motion to dismiss

In a case of first impression, the Tenth Circuit determined that it did not have jurisdiction over an interlocutory appeal of the denial of a motion to dismiss premised on the existence of an arbitration agreement, where an employer did not explicitly move to stay the litigation or compel arbitration under the Federal Arbitration Act. In this instance, an employee sued his former employer for violation of an agreement to employ him and provide him with five percent of the profits from the sale of the company. The employer moved to dismiss the complaint. Because the employer styled its motion as a Rule 12 motion to dismiss, rather than a motion under §§3 or 4 of the FAA to stay litigation and compel arbitration, the court concluded that the employer's motion did not meet the criteria to support jurisdiction under §16(a) of the FAA. In the memorandum in support of its motion, the employer asked the court to dismiss the employee's complaint. Consequently, the employer asked the court for relief in the form of dismissal, rather than requesting that the court refer the case to an arbitrator to decide the issues. Thus, the circuit court concluded that in order to invoke appellate jurisdiction under §16(a), a defendant must either move to compel arbitration and stay litigation explicitly under the FAA, or it must make it plainly apparent that it seeks only the remedies provided for by the FAA (Conrad v Phone Directories Co, Inc, November 10, 2009).

DCCir: Settlement agreement not pretext for disability bias and reprisal

A local transit authority's assertion that a prior settlement agreement barred an employee from driving an agency vehicle was not a pretext for disability discrimination or retaliation under the Rehabilitation Act, the DC Circuit ruled. The employee was hired as a bus operator in 1979, and following a fight with bus passengers that resulted in injuries to his neck and back, he took worker's compensation-paid leave in 1980. Four years later, while still on leave, he was discharged for failure to report two arrests, but reinstated as the result of a union grievance. Still on leave in 1988, he got into a fight with another coworker on the employer's property and was fired again. He filed a union grievance to contest this second termination, which resulted in a 1990 settlement agreement between him, the union and the authority. The agreement reinstated him to a cleaner-shifter position and explicitly provided he would not be permitted to operate an authority vehicle under any circumstances. Nevertheless, soon after the agreement, the employee began to apply, without success, for positions that required operating transit authority vehicles. In 1996, he sued, claiming that the authority violated the Rehab Act by failing to promote him to positions that required driving. He contended that the authority's reliance on the agreement was pretextual because it had rescinded the agreement. However, the DC Circuit emphasized that no modifications actually materialized. Accordingly, the circuit court found the agreement remained in force, and, thus, there was no support for the employee's argument that it was pretextual. (Kersey v Washington Metro Area Transit Auth, November 10, 2009).

EDMich: Settling lawsuit without consent crossed line from usual professional functions

If it were established that a law firm litigated and settled a lawsuit without the consent of union pension fund trustees, the firm would have exceeded the bounds of the functions it was hired to perform, thereby crossing the line from usual professional functions to discretionary control, determined a federal district court in the Eastern District of Michigan. The court observed that ERISA defines a "fiduciary" not in terms of formal trusteeship, but in functional terms of control and authority over a plan. Consequently, if the tasks performed by the law firm transcended the usual scope of the professional-client relationship, then the firm would be considered a fiduciary for ERISA purposes. This termination is fact-intensive. In this instance, it was alleged that the law firm was provided an open checkbook for litigation expenses, that it rejected a $110 million offer of settlement, later accepted a similar offer and filed a motion to enforce the settlement, all without advising or obtaining approval of the fund. Thus, whether the law firm exercised sufficient control over the fund was a question for a jury (Iron Workers Local 25 Pension Fund v Watson Wyatt & Co, November 4, 2009).

WDPenn: Class certification is not absolutely foreclosed by Hohider

The Third Circuit's decision in Hohider v UPS, reversing certification of a nationwide class of UPS employees alleging pattern-or-practice bias claims under the ADA, did not preclude a hospital employee from proceeding with a purported class action under the ADA and Rehabilitation Act, held a federal district court in the Western District of Pennsylvania, denying partial summary judgment to the hospital. While the hospital claimed that Hohider foreclosed class certification altogether in cases brought under the ADA or the Rehabilitation Act, the district court disagreed, finding that the hospital interpreted Hohider too broadly, and that class certification is not absolutely foreclosed by that decision. "Although the [Third Circuit's decision in Hohider] highlighted the interaction between the ADA's substantive standards and Rule 23's certification requirements throughout its opinion, it did not hold that no ADA or Rehabilitation Act case could ever be prosecuted as a class action," the court wrote. "[The hospital's] argument that Hohider categorically precludes class certifications in all ADA and Rehabilitation Act cases, without reference to the particular factual situations or class definitions at issue, simply paints with too broad a brush," the court determined. In so holding, the court emphasized that it was not addressing the merits of whether a class could be certified in this case. Therefore, if the employee moves for class certification, the hospital remains free to rely on Hohider to support its argument in opposition. "The court holds only that Hohider does not absolutely foreclose the possibility that class certification may be appropriate…and that 'the issue of class certification will be more appropriately addressed when the record is more fully developed.'" (Chedwick v UPMC, November 9, 2009).

STATE LAW CASES

CA: Librarian's scathing letter to superiors not protected free speech

The free speech clause in California's constitution did not protect a public employee's speech made during the ordinary course of his or her duties, ruled a California court of appeal. After his supervisor learned of an invitation for the employee to speak at a conference and questioned its genesis and why the invitation had not been routed through his superiors, the employee sent an email that was highly critical of the governance of the library's reference department. A review board concluded that the email exhibited an inappropriate respect for the command of the library and the employee was discharged. Pursuant to the US Supreme Court's ruling in Garcetti v Ceballos (Dkt No 04-473), when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and their communications are not insulated from employer discipline. In this instance, the employee failed to identify anything in the language or history of the state constitution's free speech clause suggesting that Garcetti should not apply. Rather, the state appeals court observed that "federal law has been leading the way for California cases involving discipline of employees for free speech activities" (Kaye v Board of Trustees of the San Diego County Public Law Library, November 10, 2009).

GA: Invalid non-compete agreement no license to sell trade secrets

A trial court erred when it upheld a non-compete clause in an employment contract preventing an employee from marketing certain software in competition with his former employer, since the clause was invalid as a matter of law, ruled the Georgia Supreme Court. A non-compete clause is invalid where it contains no limitation regarding duration, and, in this instance, the clause purported to limit the employee's actions in perpetuity. Additionally, the non-compete agreement prohibited the employee from marketing the software to doctors regardless of whether or not they ever were customers of the employer and regardless of where they were located. Thus, the non-compete clause was unreasonable. However, even without an express restrictive covenant, the employer could still prohibit the employee from marketing that portion of the software package that contained trade secrets. There were two programs developed as part of the software package, and one of the programs incorporated proprietary information and trade secrets of the employer. Thus, that program was correctly determined to be a trade secret and the trial court properly prohibited the employee from disclosing confidential information and trade secrets belonging to the employer (Coleman v Retina Consultants, P.C., November 9, 2009).

OBAMA ADMINISTRATION

President announces summit on jobs

On November 12, President Obama announced that a jobs summit will be held at the White House in December. "We'll gather [chief executive officers] and small business owners, economists and financial experts, as well as representatives from labor unions and nonprofit groups, to talk about how we can work together to create jobs and get this economy moving again," Obama said, just before leaving for his eight-day trip to Asia. The announcement came only days after the DOL's Bureau of Labor Statistics announced the latest unemployment figures. For October, the nationwide unemployment rate hit double digits for the first time since 1983, climbing to 10.2 percent.

President signs EO on federal government employment of veterans

On November 9, President Obama signed an Executive Order (EO) on the Employment of Veterans in the Federal Government, which is "designed to transform the federal government into the model employer of America's veterans," according to a statement from the White House. The EO, which establishes a Veterans Employment Initiative for the Executive Branch, underscores to federal agencies the importance of recruiting and training veterans, aims to increase the employment of veterans within the Executive Branch and helps recently hired veterans adjust to service in a civilian capacity. In addition, the EO creates an interagency Council on Veterans Employment that will advise the President and the Director of the Office of Personnel Management (OPM) on the initiative. The council will be chaired by Secretary of Labor Hilda Solis and Secretary of Veterans Affairs Eric Shinseki. OPM Director John Berry will serve as the Vice Chair and Chief Operating Officer of the council. Further, the EO establishes a Veterans Employment Program office within most federal agencies that will be responsible for helping veterans identify employment opportunities within those agencies, providing feedback to veterans about their employment application status and helping veterans recently employed by these agencies adjust to civilian life and a workplace culture often different than military service.

AGENCY DEVELOPMENTS

DOL publish notices regarding elimination of ESA

Secretary of Labor Hilda Solis issued four orders, published in the November 13 Federal Register, detailing the delegation of authority and assignment of responsibilities to the directors of each of the four agencies that had been under the umbrella of the now-abolished Employment Standards Administration. The four agencies – the Office of Federal Contract Compliance Program, the Wage and Hour Division, the Office of Labor Management Standards and the Office of Workers' Compensation Programs – now report directly to the Secretary of Labor as stand-alone agencies. Taking effect November 8, the four orders cancel Secretary's Order 1-2008 and amend other DOL orders and directives where necessary for conformity. The new orders devolve certain authorities and responsibilities of the ESA to the four agencies. Secretary's Order 7-2009 covers the OFCCP, Secretary's Order 8-2009 covers OLMS, Secretary's Order 9-2009 covers the WHD and Secretary's Order 10-2009 covers OWCP. The authorities and responsibilities specified in the four orders are consistent with the current ESA redelegation of authority and assignment of responsibility to the four agencies in effect at the time of this dissolution.

OSHA and WHD issue guidance, compliance documents on H1N1 influenza

The DOL's Occupational Safety and Health Administration has issued fact sheets that employers and employees can use in order to promote safety during the current H1N1 influenza outbreak, the agency announced November 9. The fact sheets, which are available on OSHA's "Workplace Safety and H1N1" website, inform employers and employees about the ways to reduce the risk of exposure to H1N1 influenza at work. Separate fact sheets containing additional precautions are available for health care workers, who carry out tasks and activities that require close contact with patients. On November 6, the DOL's Wage and Hour Division issued guidance documents for employers on how to comply with the FLSA and FMLA when dealing with a pandemic flu, like the H1N1 influenza. Both guidance documents, which are in a question-and-answer format, address wages and hour and leave issues employers face when employees or their family members become ill with the H1N1 virus or another pandemic flu.

Restaurant operators ordered to pay more than $2 million in back wages and damages

Li Jin Yang and Dong Lin, a wife and husband team operating five Oriental Forest restaurants across the western part of Michigan, have been ordered by a federal district court in Michigan to pay $2,030,430 in minimum wage and overtime pay and damages owed to 129 workers following an investigation by the DOL's Wage and Hour Division. The judgment resolves a lawsuit filed by the DOL that alleged the business owners paid less than time and one-half workers' regular rates for hours over 40 in a single workweek, paid them less than the federal minimum wage and failed to keep adequate and accurate pay records. Payments to individual workers range from several hundred dollars to as much as $96,000.

EEOC's website undergoes redesign

Complete with a new search engine, the EEOC announced that it has revamped its website to make information about the agency and the laws it enforces more "user-friendly and easier to navigate." However, stakeholders who are having difficulty locating information on the new site can still visit the EEOC's previous site. "We will keep the previous version up through the end of 2009, but please note that we will no longer be updating it," said the agency."

LEGISLATION

Senate passes bill clarifying FMLA coverage for flight attendants, airline pilots

By unanimous consent, the Senate approved a bill November 10 that would close a loophole in the FMLA and give flight attendants and airline pilots greater access to leave under the Act. Called the Airline Flight Crew Technical Corrections Act of 2009 (S. 1422), the Senate bill is substantially similar to a bill (H.R. 912) that passed the House February 9 by voice vote. To qualify for FMLA leave, employees must work for their employer for at least 12 months and for at least 1,250 hours during the previous 12 months, which amounts to 60 percent of a standard 40-hour workweek. Courts calculate the requisite number of hours using the FLSA, which covers most workers. However, the hours worked by airline flight crews are calculated differently. Unlike most workers, flight crewmembers are not credited for each hour they spend on the job. Instead, they are only credited for actual "in flight" hours – hours generally spent while the plane is moving – even though they spend more time at work. This means that time between flights, such as overnights and layovers, do not count toward FMLA coverage and have resulted in flight crews being excluded from receiving unpaid leave. The bill would close that loophole by changing the hours of service requirements for airline flight crew members to make them eligible for FMLA leave if they have fulfilled 60 percent of a full-time work schedule (or the "monthly guarantee") at their airline.

Senate committee holds hearing on H1N1 and paid sick leave

Deputy Secretary of Labor Seth Harris testified November 10 before the Senate Health, Education, Labor and Pensions Subcommittee on Children and Families about workplace flexibility and paid leave in the context of the H1N1 flu pandemic. Harris expressed the Administration's strong support for the Healthy Families Act of 2009 (S. 1152/H.R. 2460) as a way to provide workplace flexibilities and increased economic security. "It's common sense and good business sense —workers should be able to stay home if they are ill," said Harris. "The Healthy Families Act offers a great opportunity to level the playing field for workers and gives them the ability to stay home if they are sick without fear of losing their jobs or being forced to work sick."

House committee schedules vote on ENDA, will hold hearing on paid sick leave bill

Editor's note: The House Education and Labor Committee has postponed its November 18 markup of the Employment Non-Discrimination Act of 2009, confirmed committee spokesperson Aaron Albright. The House Education and Labor Committee will markup the Employment Non-Discrimination Act of 2009 (H.R. 3017) November 18. Introduced by Rep. Barney Frank (D-Mass), ENDA would prohibit employment discrimination against individuals based on their sexual orientation or gender identity; it has 189 cosponsors. The committee will consider amendments to the legislation before voting to report out the legislation to the House floor. One day earlier, the committee will hold a hearing on the Emergency Influenza Containment Act (H.R. 3991), emergency temporary legislation that would guarantee a maximum of five paid sick days for employees sent home or directed to stay home because their employer believes they have symptoms of a contagious illness, or have been in close contact with an individual who has symptoms of a contagious illness, such as the H1N1 flu virus.

REPORTS

Demographics of the labor movement have shifted considerably over the past 25 years

Over the past 25 years, the face of the labor movement has undergone considerable change, according to a report released November 10 by the Center for Economic and Policy Research (CEPR). The report, "The Changing Face of Labor, 1983-2008," analyzes trends in the union workforce over the last quarter century and finds that it is more diverse today than just 25 years ago. These trends in the composition of the unionized workforce, in part, reflect similar shifts in the workforce as a whole.

Report addresses employment verification in the context of CIR

We can expect comprehensive immigration reform legislation to mandate that all employers use some sort of system that verifies the work authorization of all workers. Since this will affect every single worker in the United States – citizens and immigrants alike – and because an error in the system can cost a worker his job and paycheck, it is important to make the system workable. A report from the Immigration Policy Center lays out the "must-haves" for any broad employment verification system, discussing why a system like this can only work if it is within the context of a broader comprehensive immigration reform (CIR) package.

TWITTER UPDATES

CONFERENCE NEWS

Employers should prepare for a dramatic increase in post adjudication audits of H-1B and L-1 workers

Employers that sponsor foreign nationals under the H-1B and L-1 visa categories should be prepared to receive random, "unannounced" visits in the coming months from US Citizenship and Immigration Services' (USCIS) Office of Fraud Detection and National Security and Records Verification (FDNS), confirmed attorneys speaking at the Federal Bar Association's Fourth Annual Program on What You Should Know About Workplace Enforcement and Immigration, held November 9, 2009.

PRACTICE NEWS

2009 worst year for lawyer headcount in three decades, says 'NLJ 250' survey

The total number of attorneys working at the top 250 law firms plunged by 5,259 lawyers, according to results from the 32nd annual National Law Journal survey of the nation's 250 largest law firms. The number of attorneys in 2009 sank to 126,669 lawyers, compared with 131,928 attorneys last year. The 4.0 percent decline in the total number of attorneys marked only the third time that the lawyer count among the group has dropped since the NLJ started collecting headcount data in 1978.

Law firms focusing on expertise that can boost revenues, according to survey

While many law firms remain cautious about adding new staff, those firms that are hiring want associates who can help them expand lucrative practice areas and bring in new business, according to a survey from staffing company Robert Half Legal. Asked what criteria is the most important when evaluating prospective mid-level hires, nearly half of the lawyers interviewed cited practice area expertise followed by business development skills.

HEALTH CARE REFORM

White House weighs in on budget reconciliation protection of health care reform bill

White House Press Secretary Robert Gibbs indicated the Administration would consider an alternative vehicle for getting health care reform bill to the President's desk by the end of 2009 if it cannot be done in regular order. Asked whether the President would sign a health care reform bill under the budget reconciliation process, Gibbs said he believes Congress is making sufficient progress on health care reform, but he added that if that becomes no longer the case, "then we will look at alternatives," Gibbs said at a press briefing on November 9. However, Senate leaders, anticipating a Republican uproar if the Democrats used budget reconciliation protection, have indicated they would never consider the omnibus reconciliation bill as an option.

Business Roundtable/Hewitt report discusses proposed health reforms

Effective health care reform could save as much as $3,000 per employee in 2019, according to a November 2009 report from Hewitt Associates commissioned by the Business Roundtable. In the report, Health Care Reform: The Creating a Sustainable Health Care Marketplace, Without fundamental reform, employment-based spending on health care at large employers will be 166 percent higher than today on a per-employee basis. This equates to an average of $28,530 per employee when employer subsidies, employee contributions, and employee out-of-pocket costs are combined.

SUPREME COURT

High Court hears arguments on how to determine a corporation's "principal place of business"

In a case that will affect whether plaintiffs litigate claims in "employer-friendly" federal court or more "plaintiff-friendly" state court, the Supreme Court heard oral arguments November 10 in Hertz Corp v Friend (Dkt No 08-1107), addressing whether a court can disregard the location of a nationwide corporation's headquarters for the purposes of determining the corporation's principal place of business for diversity jurisdiction citizenship. Hertz argued that its principal place of business is New Jersey, where its corporate headquarters are located. However, the respondents, employees who filed a wage and hour class action against the company in California state court, subscribed to a multi-factored "place of operations" test, puttting Hertz's principal place of business in California.

IN OTHER NEWS

Are age bias complaints declining or not?

The EEOC announced November 6 that it is preparing to release statistics indicating that age bias complaints declined by 7% in 2009, reported the National Law Journal (via Law.com). However, such stats contradict the expectations of most employment lawyers, given heavy job losses. The decline also runs contrary to anecdotal information the EEOC provided to the NLJ for a story it published November 2 in which agency personnel said that age and race bias complaints were outstripping all other categories in their rate of increase.

Scientists awarded $6.2 million in age bias suit

On November 10, a federal jury awarded more than $6.2 million to two scientists who asserted that they were fired from their jobs at a Pennsylvania chemical manufacturing firm when the company targeted only older workers for layoffs in 2005, reported the Legal Intelligencer (via Law.com). The firm claimed that the layoffs were justified by reasons completely unrelated to age, most notably because funding for the plaintiffs' positions was eliminated. The firm intends to file post-trial motions and an appeal.

Ricci back in court

Four months after the Supreme Court ruled that the city of New Haven, Connecticut violated Title VII's prohibition against discriminatory treatment when it tossed the results of a group of 20 Caucasian firefighters' promotion exams on the premise that certifying the results would lead to disparate impact litigation, the controversial case has landed back in court, where a jury trial looms, reports the New Haven Independent. The case has returned to the US District Court for the District of Connecticut to determine who should have been promoted. No one has been promoted in the six years since the city held the exam. The jury trial will determine the even stickier issue in the case: The amount of money due to the firefighters who were denied the promotions.

Caterpillar reaches tentative $16.5 million settlement 401(k) litigation

Construction, mining and engine manufacturer Caterpillar Inc, and the law firm of Schlichter, Bogard & Denton, announced November 5 that they have reached a tentative settlement of Martin v Caterpillar Inc (No 07-1009), litigation involving a dispute over the administration of four 401(k) plans for Caterpillar employees and retirees that is currently pending before Judge Joe Billy McDade of the US District Court for the Central District of Illinois. According to the terms, which must be approved by an independent fiduciary and Judge McDade, Caterpillar will pay $16.5 million to the plaintiffs. The net proceeds of the settlement will be allocated to participant accounts and former participants based generally upon the number of years a participant maintained an account balance in one or more of the plans.

White House to start push for CIR in 2010

The Obama Administration will insist on measures to give legal status to an estimated 12 million illegal immigrants as it pushes early next year for legislation to overhaul the immigration system, Homeland Security Secretary Janet Napolitano said in a speech to the Center for American Progress November 13, reported the New York Times. In her first major speech on the overhaul, Napolitano dispelled any suggestion that the Administration – with health care, energy and other major issues crowding its agenda – would postpone comprehensive immigration reform (CIR) legislation until after midterm elections next November. Laying out the Administration's immigration agenda, Napolitano said officials would argue for a "three-legged stool" that includes tougher enforcement laws against illegal immigrants and employers who hire them and a streamlined system for legal immigration, as well as a "tough and fair pathway to earned legal status."

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About CCH WorkWeek

This weekly newsletter provides corporate counsel and law firm practitioners with need-to-know employment and labor law information in a timely, yet manageable manner. Benefit from news and information in a broader context, with deeper analysis of recent developments and corresponding trends. Delivered to you every Monday, CCH WorkWeek offers timely coverage of breaking legislative developments, regulatory activity, state law changes, key case law and expert commentary by CCH editors.