For the Week of October 5, 2009

KEY CASES

2ndCir: Successor must arbitrate question of whether it was bound by contract

A successor employer was obligated to arbitrate the issues of whether and to what it extent it was bound by the terms of a bargaining agreement between a union and a predecessor employer, a divided Second Circuit panel held, affirming a district court order compelling arbitration. The union sued the successor employer for failing to make contributions to the union's health and welfare fund as required by the bargaining agreement; the union sought an order forcing the employer to arbitrate the dispute over the unpaid contributions. The Second Circuit declined to adopt the Third Circuit's holding in AmeriSteel Corp v Int'l B'hood of Teamsters that, even if an employer was obligated to arbitrate pursuant to the arbitration clause of a predecessor contract, arbitration would be futile. Because a successor could not be bound by the specific terms of a predecessor agreement, the sister circuit reasoned, no arbitration award could receive judicial sanction. The Second Circuit ruled, however, that even if the successor is not automatically bound to the substantive terms of a contract, the successor is nonetheless required to arbitrate the issue of whether it is bound. The appeals court also left it for the arbitrator to decide in the first instance the question of to what it extent the successor is bound by the contract's substantive provisions (Local 348-S, UFCW v Meridian Management Corp, October 2, 2009).

2ndCir: Oral promise not enough to alter terms of ERISA plan

An alleged oral representation made to employees about how their pension benefits would be calculated after a company merger was not enough on which to base ERISA claim for breach of fiduciary duty, the Second Circuit ruled, affirming a district court's grant of summary judgment to the employer. Oral promises cannot vary the terms of an ERISA plan, the court noted. This principle "applies with equal force to alleged breaches of fiduciary duty when the alleged breach is an oral representation that purports to change an ERISA benefit plan," wrote the court. "[W]e see no reason to give the statement effect by re-characterizing it as a breach of fiduciary duty." Because the plaintiffs failed to identify a sufficient writing to support their claim, the employer was entitled to judgment as a matter of law (Ladouceur v Credit Lyonnais, September 30, 2009).

9thCir: Return-to-work physical evaluation was a medical exam under the ADA

A paper mill employee who alleged she was discharged after failing an employer-required return-to-work "physical capacity evaluation" (PCE) following knee surgery may go forward with her disability bias claim under the ADA because the PCE was a medical exam under the Act, not a fitness exam assessing whether she was able to perform the essential functions of her job, held a divided Ninth Circuit, reversing and remanding the case for a determination as to whether the exam was "job-related and consistent with business necessity." In so holding, the Ninth Circuit reviewed the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, which provides several factors for determining whether a test is a medical exam. While the two-day PCE, performed by a licensed occupational therapist, did consist of a job analysis, including physical agility tests, it also considered things like the employee's medical history, her current pain level and use of medication, alcohol, tobacco and assistive devices. The therapist also measured the employee's range of motion and muscle strength, recording her heart rate and breathing before and after a treadmill test. When balancing all the factors, the PCE was a medical exam, held the Ninth Circuit. Although "[t]he purpose of the PCE may very well have been to determine whether [the employee] was capable of returning to work, the PCE…clearly sought ‘information about [her] physical or mental impairments or health,' and involved tests and inquiries capable of revealing to [her employer] whether she suffered from a disability," the appeals court wrote (Indergard v Georgia-Pacific Corp, September 28, 2009).

9thCir: Dual representation proves risky for CFO; no presumption of privilege

Exploring "the treacherous path which corporate counsel must tread under the attorney-client privilege when conducting an internal investigation," the Ninth Circuit held a Broadcom Corp CFO should have known that statements made to lawyers who represented both him as an individual as well as the company were not made in confidence and that the lawyers were likely to share any information the CFO provided with auditors who were investigating a backdating scheme. Following a government investigation, the CFO had been criminally indicted for his involvement in an alleged scheme that resulted in Broadcom's restatement of its earnings to account for approximately $2.2 billion in additional stock compensation expenses. At issue was whether the lawyers clearly explained to the CFO that they were representing the company and that anything he told them could be shared with the government. The CFO maintained he couldn't recall any such notice. Applying California law, in which the burden of proof fell on the prosecution, the trial court reasoned that the law firm breached its privilege by revealing his statements to the government. The Ninth Circuit disagreed, finding that, under the correct test—federal law—the CFO failed to prove that his statements were made in confidence because he knew that they would be turned over to the outside auditors. As the senior corporate executive charged with primary responsibility for the company's financial affairs, the court concluded, the CFO "was no ordinary Broadcom employee" and should have understood his legal jeopardy. The appeals court therefore reversed a district court's order suppressing the evidence reflecting the CFO's statements to outside counsel (US v Ruehle, September 30, 2009).

11thCir: Ledbetter Act does not save ADEA claims over retirement program

The Eleventh Circuit, in an unpublished ruling, affirmed summary judgment to a municipality in a multi-plaintiff ADEA collective action brought by police officers challenging a voluntary early retirement incentive program, which required them to execute a waiver of claims in order to participate. The officers sued under federal law and Florida state law for disparate treatment and disparate impact age discrimination. They contended on appeal that an employee cannot waive rights under the ADEA — and that their contention was reinforced by the passage of the Lilly Ledbetter Fair Pay Act. In affirming summary judgment, the appeals court rejected the officers' arguments that the Ledbetter Act precludes application of validly executed waivers, or that the recent legislation affords plaintiffs a cause of action for receipt of pension checks allegedly tainted by age discrimination. CCH Labor and Employment Law Advisory Board member Gerald Maatman, a partner at Seyfarth Shaw, litigated the case (Lerman v City of Fort Lauderdale, September 28, 2009).

NDIll: Cert denied in suit alleging collusion to suppress nurses' hourly wages

A group of registered nurses could not proceed as a class in an antitrust action against several Chicago-area hospitals that allegedly conspired to suppress nurses' base hourly wages, in violation of the Sherman Act, held a federal district court in Illinois. The case is unusual in that it features a relatively new type of claim brought against employers by employees claiming collusion on wages. In this instance, the nurses claimed the hospitals had shared compensation data and agreed to keep their mean and median base wages close to the mean and media reported in RN compensation surveys distributed by the Metropolitan Chicago Healthcare Council, in violation of Department of Justice and FTC guidelines. However, the court found the nurses failed to meet their burden of establishing that common proof concerning the fact of injury would predominate over individualized inquiries. The nurses further failed to show, via their expert's analysis, that a reliable formula for calculating damages could be devised. Therefore, the nurses' motion for class certification was denied (Reed v Advocate Health Care, September 28, 2009).

NDIll: Chicago alderman violated NLRA; city of Chicago vicariously liable

Municipalities and elected officials frequently inject themselves into local labor disputes. In this instance, the City of Chicago was vicariously responsible for what a federal district court in Illinois deemed was a violation of the NLRA by a city alderman who refused to issue a permit to operate a sidewalk café to a hotel that had been embroiled in a labor dispute for several years running with the union that helped get him elected. The record showed that the alderman made statements both in public and in meetings with union officials suggesting his approval of the permit hinged on the hotel's settling the labor dispute. The alderman kept the union president apprised about the status of the permit application and the court noted the alderman was very concerned about the union's reaction to his decisions regarding the application. The record was devoid of his reasons, however, for opposing the permit. Based on these facts, the court found the main factor considered by the alderman in deciding against the permit was the union's desire to end the strike. The alderman thus had impermissibly inserted himself into the collective bargaining process in violation of the Act. Moreover, the city had delegated policymaking authority over permit applications to its aldermen; permit applications are only referred to the city council if the alderman representing the affected ward approved. This "aldermanic privilege" essentially gave aldermen the final say on the granting of permits in their respective wards. The court held the city liable in light of this complete delegation of authority, and thus found both defendants violated the NLRA. However, since the hotel failed to submit evidence that other businesses had been granted permits for sidewalk cafés, the hotel's equal protection claim was dismissed (520 S. Michigan Ave v Fioretti, September 28, 2009).

NDIll: Drivers could file FLSA suit despite being covered under SCA

A group of similarly situated drivers could proceed with their suit that they were willingly misclassified as "local drivers" under the FLSA and thus were improperly denied overtime pay, despite the fact that their work was covered by the Service Contract Act (SCA), a federal district court in Illinois ruled. Their employer was a contract carrier for the US Postal Service and therefore was subject to the Service Contract Act. As such, the employer contended the dispute was explicitly governed by the administrative procedures established by the Secretary of Labor pursuant to the SCA. The court rejected this argument, citing the "supplemental nature of the FLSA, combined with the SCA's failure to explicitly guarantee overtime compensation in all federal contracts but referencing the availability of other governing law." The court noted too that Department of Labor SCA regulations state that "other laws may be applicable to claims for overtime compensation" in work performed under federal service contracts. Thus, the district court concluded it had subject matter jurisdiction over the drivers' FLSA claim (McDonald v Eagle Express Lines, Inc, September 29, 2009).

EDMich: Norris-LaGuardia Act bars court from enjoining union's "call to action"

A district court refused to enjoin the Laborers from engaging in a "call to action" to protest the actions of a home builder who fired several employees, ostensibly for their union activities, concluding it lacked jurisdiction under the Norris-LaGuardia Act, which bars federal courts from issuing such injunctions. Pulte Homes, the largest new home builder in the country, filed suit against the union, alleging violations of the Computer Fraud and Abuse Act as well as state tort claims, after union members and supporters inundated Pulte's phone lines and email systems with complaints about the discharges. The builder said the union had attempted to inhibit the company's ability to conduct its daily business and intimidate its employees. However, concluding the matter at hand was a labor dispute within the meaning of Norris-LaGuardia, the court held it was specifically prohibited from granting the employer such relief (Pulte Homes, Inc v Laborers Int'l Union of North America, September 24, 2009).

DNJ: Jury verdict stands against employer that accessed employee website

A jury verdict in favor of two waiters who were fired after their managers accessed a private, password-protected MySpace website, set up by restaurant employees to vent against management and make fun of customers, was upheld by a federal district court in New Jersey. The court, in an unpublished ruling, rejected the employer's claim that its managers were authorized by a restaurant hostess to access the invitation-only chat group. According to the court, the evidence supported the hostess's claim that her "authorization" was coerced. Moreover, the jury reasonably found that the managers repeatedly visited the website without authorization, rather than by mistake or accident, in violation of the Stored Communications Act and state law. Thus, the court refused to throw out the jury's award of compensatory and punitive damages to the waiters (Pietrylo v Hillstone Restaurant Group dba Houston's, September 25, 2009).

NDOkla: Prior settlement in Rule 23 class action precluded overtime claims

"It is undeniable that present in every hybrid action is an inherent conflict between FLSA Section 216(b)'s opt-in requirement and Rule 23's opt-out requirement," a federal district court in Oklahoma observed. In an apparent case of first impression, that inherent conflict worked against a plaintiff in a subsequent FLSA suit asserting overtime claims arising under the same set of facts. The plaintiff was identified as a Rule 23 class member in the prior litigation but he had not affirmatively opted in to the Sec. 216(b) claim in that hybrid suit. Nonetheless, a settlement agreement in the earlier hybrid action, which released all claims arising prior to July 13, 2007, had preclusive effect on his current claims for unpaid overtime pay arising before that date. As such, the plaintiff's discovery requests related to claims arising prior to July 13, 2007, therefore could not lead to the discovery of admissible evidence, and the requests thus were improper (Kuncl v IBM Corp, September 23, 2009).

WDOkla: ADEA claim survives under McDonnell Douglas framework

Three circuit courts (the 3rd, 6th and 7th) have now confirmed the viability of the McDonnell Douglas test in the aftermath of the Supreme Court's decision in Gross v FBL Fin Servs, Inc. Here, a federal district court in Oklahoma (sitting in the Tenth Circuit, which is yet to address the issue) reaches the same conclusion: Although a former employee over age 50 would be required to show that but for age bias, he would not have been discharged in order to prevail at trial on his ADEA claim, summary judgment was precluded because he provided "more than ‘a mere scintilla'" of circumstantial evidence on the issue of pretext under the McDonnell Douglas burden-shifting framework. At the summary judgment stage, the McDonnell Douglas framework is still applicable to ADEA claims, although ADEA plaintiffs are required to prove at trial that age bias was the but-for cause of a challenged employment action, the district court held. While the High Court in Gross declined to apply to ADEA cases the burden-shifting analysis used in mixed-motive Title VII cases, the Court expressly made no determination as to the viability of the McDonnell Douglas rubric. Here, although evidence supported the employer's contention that the plaintiff was fired due to his abrasive manner and lack of interpersonal skills, the employee offered other evidence showing he was never disciplined for that shortcoming and instead received salary increases during the period of his employer's purported dissatisfaction. He also pointed to the differing explanations for his discharge that his employer gave to a state agency and the EEOC and the lack of any explanation in his termination letter. Noting that at summary judgment, a plaintiff is not required to "offer any evidence of actual discrimination," and that in some cases, a successful assault on part of an employer's articulated reason for its challenged action is sufficient to survive summary judgment even if one or more of the reasons offered are not discredited, the court denied summary judgment for his employer (Moore v Dirt Motorsports, Inc, September 15, 2009).

STATE LAW CASES

IL: "Legitimate business interest" test rejected in restrictive covenant analysis

Affirming a trial court ruling that enjoined a former employee and his new employer from violating a restrictive covenant in an employment agreement, an Illinois appeals court concluded the "time-and-territory" test is the proper analysis when dealing with restrictive employment covenants, rejecting the "legitimate business interest" test in such cases. The former employee had taken a sales position with a competitor. The employer sought to enforce the employment agreement, which required that the former employee not engage in work with a competitor for one year within 50 miles of one of its branches. The trial court granted the injunction request, applying the Illinois Supreme Court's decision in Mohanty v St John Heart Clinic, a 2006 restrictive employment covenant case, to determine that the time and territory of the employer's restrictive covenant was reasonable. The former employee appealed, arguing that the trial court abused its discretion by not following controlling precedent, which required the "legitimate business interest" test be used to grant an injunction. In affirming, the appeals court reasoned that the "legitimate business interest" test had never been embraced by the Illinois high court for restrictive covenants. In Mohanty, the state high court never mentioned the "legitimate business interest" test; rather, it relied on time and territory. As such, the appeals court rejected the "legitimate business interest" test and, using the "time-and-territory" test, concluded the covenant was reasonable (Sunbelt Rentals, Inc v Ehlers, IllAppCt, September 23, 2009).

MI: Injunction granted in suit claiming misappropriation of client information

A federal district court in Michigan has granted JPMorgan Chase Bank a temporary injunction against six of the bank's former financial advisers who, after voluntarily terminating their employment with Chase, immediately joined the workforce of a competitor, Morgan Stanley. In filing the instant lawsuit, Chase alleged that the advisors misappropriated confidential client information that they wrongfully used to solicit new clients. The defendants did not deny either having entered into non-solicitation agreements with Chase or contacting clients whose accounts they had worked with when employed by Chase. Although the court agreed with the advisors' argument that an individual's address and telephone number are easily enough obtained through the Internet or a telephone book, it noted that information about his or her financial needs are not. As such, for purposes of a request for a temporary injunction only, the court concluded that Chase has shown a likelihood of success on the merits on their claim of misappropriation of a trade secret (JPMorgan Chase Bank v Clark, EDMich, September 29, 2009).

NV: No public policy exception for discharge for organizing coworkers

The Nevada Supreme Court declined to recognize a new exception to the at-will employment doctrine by allowing a claim for tortious discharge in the case of a pilot who alleged he was fired after collectively organizing his coworkers in demanding additional pay for mandatory training. Citing both state law and the NLRA, the plaintiff alleged that terminating an employee for organizing his coworkers ran counter to the public policy of the state and thus should be a recognized exception to the at-will employment doctrine. However, the state high court noted it would not recognize an action for tortious discharge where the plaintiff has an "adequate, comprehensive, statutory remedy." The plaintiff had such a remedy under the federal Railway Labor Act, the supreme court found, noting the Ninth Circuit recognized a private right of action under the statute. "[I]t would be unfair to a defendant to allow additional tort remedies under such circumstances," the court wrote, affirming summary judgment to the employer (Ozawa v Vision Airlines, NevSCt, October 1, 2009).

NY: Dan Rather's breach of contract, tort claims against CBS dismissed

Five years ago, CBS anchor Dan Rather was relieved of his duties after he aired a report questioning President George Bush's record of service in the Texas Air National Guard. Rather filed a breach of contract suit as well as various tort claims, including a claim for lost business opportunities due to CBS's failure to release him to seek other employment. Last week, a New York state court dismissed all of Rather's claims. "Rather's claim for lost business opportunities is insufficiently supported," the court wrote, concluding Rather effectively undermined his own career by reflecting a bias against President Bush. "Since, according to Rather's own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time." Hard to fathom in the contemporary media age, where the perceived market value of media figures seems to skyrocket based on anti-Presidential bias (Rather v CBS Corp, NYSupCt, September 29, 2009).

VT: Individual liability permitted under VFEPA

The Vermont Fair Employment Practices Act (VFEPA) provides for individual liability, ruled the Vermont Supreme Court as it reversed and remanded an employee's discrimination claim. The employee filed suit for several claims including sexual harassment and discrimination, naming several supervisors in their individual capacity. Many states analyze their fair employment protections acts like Title VII, which does not permit individual liability for employees or supervisors, the supreme court noted. However, the state high court held the VFEPA differs for several reasons. Its definition of employer is "markedly and substantially different" than that used in Title VII. Finding it had no duty to interpret VFEPA "identically" to Title VII, the court refused to adopt an interpretation of VFEPA "solely because the federal courts, including the US Supreme Court, have so interpreted Title VII." Further, Vermont's law "expressly includes" any employer, even if it has only one employee within the state, and includes "‘any agent,'" regardless of size. In addition, citing its penalty and unrestricted damages provisions, the court noted the VFEPA does not limit its remedies to relief typically available just from employers. The plain statutory language "encompasses individual supervisors and managers whose conduct violates" VFEPA. Moreover, allowing such lawsuits is consistent with those statutes' remedial purpose: "to deter and to eradicate discrimination in [the state]." (Payne v US Airways, VtSCt, September 25, 2009).

WA: Medical marijuana law did not create right of action against employers

Washington state's Medical Use of Marijuana Act (MUMA) did not create a right of action against an employer for refusing to hire a job applicant who failed a pre-employment drug test because she used marijuana (with authorization under the Act) to alleviate migraine headaches, a state appeals court held. The applicant filed suit after the employer withdrew a conditional offer of employment when she tested positive for marijuana. She argued that, because MUMA specifically prohibited authorized users of medical marijuana from being "penalized in any matter, or denied any right or privilege," the statute barred employers from taking adverse employment actions against marijuana users. The applicant also cited a provision in the law which stated, "Nothing in this chapter requires any accommodation of any medical use of marijuana in any place of employment," arguing this clause suggested employers were required to accommodate use of the drug outside the workplace. The appeals court rejected the plaintiff's reading of the statute as "strained" and out of context. MUMA did not create any new substantive employment rights; its restrictions merely provide a defense to criminal prosecution for marijuana use. The appeals court also rejected the applicant's assertion that MUMA embodied a clear public policy barring employers from terminating employees for lawful drug use under the Act (Roe v Teletech Customer Care Management, WashCtApp, September 15, 2009).

AGENCY DEVELOPMENTS

$6.2 mil settlement of ADA class action against Sears sets EEOC record

A consent decree resolving a class lawsuit against Sears, Roebuck and Co for $6.2 million and significant remedial relief was entered last week—the largest ADA settlement in a single lawsuit in EEOC history, the agency noted. Its suit alleged that Sears maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the Act.

EEOC closes out fiscal year with a spate of filings

The EEOC's fiscal year drew to a close last week with another busy round of court filings. Among them:

• A wage bias, sexual harassment and reprisal suit against JPMorgan Chase, alleging the banking giant subjected female employees to wage discrimination, a sexually hostile environment and retaliation at its Polaris Park facility in Columbus, Ohio;

• A racial harassment and retaliation suit against a construction company whose supervisors used racially charged comments and displayed and used a noose, and then took reprisals against three African-American construction workers who complained after being subject to the harassment by refusing to send them out on any other jobs. "All racist displays are unacceptable, but a noose is a particularly cruel and violent symbol that should be eradicated from any place of employment," said acting EEOC chair Stuart Ishimari. Read

• An ADA suit against a convenience store chain that fired a management employee shortly after the company learned his statements to an EEOC investigator had contributed to a finding of violation in connection with a discrimination charge brought by another employee. "We are so fortunate to have some people who will step forward and provide honest information about what may have happened to a coworker," said regional attorney Robert A. Canino of the EEOC's Dallas district office. "We simply cannot afford to have that kind of workplace integrity diluted by the chilling effects of reprisal. However, with the award of punitive damages available to juries, the decision to get rid of employees who have simply been honest in support of law enforcement efforts can be a costly one." In fiscal year 2008, retaliation filings with the EEOC under all statutes rose 23 percent.

DOL recovers over $1.5 mil in back wages for Service Contract Act violations

The Department of Labor has recovered more than $1.5 million in back wages for 272 employees of SI International SEIT Inc, a contractor for US Citizenship and Immigration Services (USCIS), after a Wage and Hour Division investigation revealed the company had misclassified employees and failed to pay them the proper prevailing wage rates for the type of work they were actually performing. The contractor employed workers at USCIS' Vermont Service Center under federal service contracts subject to the McNamara-O'Hara Service Contract Act's prevailing wage provisions.

Obama bans federal employees from texting while driving

President Barack Obama signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles; when using electronic equipment supplied by the government while driving; or while driving privately owned vehicles when they are on official government business. The order also encourages federal contractors and others doing business with the government to adopt and enforce their own policies banning texting while driving on the job.

OSHA to focus on under-recording of workplace injuries

In an effort to identify and correct under-recorded and incorrectly recorded workplace injuries, OSHA has issued a new National Emphasis Program (NEP) establishing enforcement procedures to inspect the accuracy of the occupational injury and illness recording and reporting requirements for low-rate establishments in selected industries. This NEP also complements BLS' efforts to investigate factors accounting for differences in the number of workplace injuries and illnesses estimated by the BLS and other data sources.

LEGISLATION

Amendment would bar contractors' use of mandatory arbitration agreements

The Senate on Tuesday will take up an amendment to the defense appropriations bill that would bar federal contractors from using any funds distributed under the appropriations bill for any contract in which employees or independent contractors who perform work under the contract are required, as a condition of employment, to sign a contract agreeing to resolve through arbitration any Title VII claim "or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention." The amendment was introduced by Sens. Al Franken (D-Minn.) and Mary Landrieu (D-La).

Michigan bill would ban employment discrimination based on firearm ownership

A bill that would prohibit employment discrimination based on firearm ownership was introduced in the Michigan House earlier this month. The Firearm Ownership Employee Protection Act would prohibit employers from asking a firearm-related question during the job interview process and for refusing to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation or a term, condition or privilege of employment because the employee is, or is believed to be, the legal owner of a firearm. The bill also would prohibit retaliation.

Inflation-adjusted state minimum wage rates stay put—or fall

The minimum wage in Washington will remain at $8.55 an hour in 2010 because the Consumer Price Index (CPI) for the past 12 months did not increase. The state's Department of Labor and Industries recalculates the minimum wage for inflation each year according to the change in the federal CPI for Urban Wage Earners and Clerical Workers (CPI-W). The CPI fell 1.9 percent during the 12-month period ending in August (compared to a 5.9 percent increase during the same period in 2008). Washington is one of ten states that adjusts the minimum wage based on inflation. Colorado's Division of Labor recently announced a proposal to decrease the state's minimum wage rate for the first time under a provision calling for up-or-down adjustments based on the CPI.

SUPREME COURT NEWS

NLRB seeks cert on question of two-member rulings

On behalf of the NLRB, the US solicitor general has asked the Supreme Court to settle the question of whether the Board is authorized to issue decisions while three of its five seats remain vacant.

Judiciary committee to consider impact of rulings

The Senate Judiciary Committee will hold a hearing to examine two Supreme Court decisions that have made it harder for workers to take employers to court for civil rights violations and, once there, more difficult for victims to prove workplace discrimination. The hearing will focus on the High Court opinions in Circuit City v Adams, which held that the Federal Arbitration Act applies to employment contracts, and Gross v FBL Financial Services, Inc, which rejected the mixed-motives burden-shifting rubric applied under Title VII.

Gross ruling changes ADEA ground rules

In June, the Supreme Court issued a controversial 5-4 decision in Gross v FBL Financial Services, Inc, a mixed-motives disparate treatment ADEA case. There can be little doubt that after Gross, ADEA plaintiffs will find it more difficult to win—which is exactly the result that the majority desired, posit professors John D. Bible and Donald Sanders in the most recent issue of CCH's Labor Law Journal.

Penn Plaza reflects shift in thinking on arbitration of statutory claims

In Penn Plaza LLC v Pyett, the Supreme Court, in a 5-4 decision, held that parties governed by the NLRA can agree to require employees to arbitrate workplace discrimination claims arising under the ADEA. The decision reflects a continuing shift in the Court's view of the efficacy of arbitration of statutory discrimination claims, notes Winston & Strawn's Gerald Peterson in CCH's Labor Law Journal.

CCH WORKDAY

Can you spell "karma"?

The story began last December, when workers at a Republic Windows factory staged a sit-in that garnered tremendous sympathy (not to mention media coverage). The plot thickened in September when Republic's CEO was indicted for stealing the company's assets, money laundering and secretly trucking company equipment to a new, nonunion plant in Iowa. CCH's Connie Eyer gets us up to speed on the still-unfolding saga in CCH Workday.

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HEALTH CARE REFORM

Senate Finance committee rejects public option, but it's likely to resurface

The Senate Finance Committee rejected two amendments last week that would have provided a public option health insurance plan, but lawmakers backing the proposals said they plan to offer them again when the full Senate takes up health care reform. (The Finance Committee on Friday night released the final text of the health care bill that it will vote on this week.)

PRACTICE NEWS

Former in-house counsel disclosed confidential information

A judge has referred a former in-house attorney for Toyota Motor Sales to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information, according to the National Law Journal (via Law.com). The automaker requested an injunction to force the attorney, the former national managing counsel in the legal services group in charge of Toyota's rollover litigation program, to stop publicizing privileged information about Toyota's lawsuits, settlements and litigation policies.

WEB 2.0

Lawyers warn re: recruiting via Twitter...

Some employers now rely heavily or even exclusively on Twitter or LinkedIn to fill open positions. This approach may skew applicant pools and trigger discrimination suits, notes Workforce Management. "Networking sites, including Twitter, exclude whole populations," says attorney Jessica Roe. "We are going to end up with a very homogenous workforce. The social networks represent limited social groups and very small labor pools. It's an enormous issue."

... And recruiters respond

The reader comments to the article above reflect the pulse of our HR colleagues on this issue. Need further convincing? FistfulofTalent, a recruiting industry blog, offers a more pointed response. "Employment law `experts' are killing my profession," the blogger laments. "You only care about promoting your little section of the world, which is risk management from a legal perspective. In the meantime, you scare, intimidate and generally freeze the average HR person from adopting tools that can help them do their jobs better, get more respect and generally free themselves from the stereotype that they're nothing more than advanced secretaries paid to say `no.'"

... Help wanted: tech-savvy lawyers

"Understanding that clients want practical solutions that embrace technology—without the advice to simply ignore it—is a big challenge to lawyers in the upcoming years," notes Connecticut Employment Law Blog. "Hopefully, as more attorneys start using the technology themselves, more clients will start to think that their attorneys are raising solutions, rather than just raising alarms."

IN OTHER NEWS

David Letterman: Stupid human tricks

Most observers were no doubt taken by the intrigue of the extortion plot. But when news broke of the plot to blackmail David Letterman, our minds jumped to the sexual harassment implications of the story. Paul Secunda was no different. The Marquette law professor (and CCH Labor and Employment Law Advisory Board member) spoke to The Wall Street Journal about the legal issues at hand.

Immigration crackdown with firings, not raids

Clothing maker American Apparel is firing about 1,800 immigrant employees who work at its vast garment factory in downtown Los Angeles, The New York Times reported—a showcase for the Obama administration's effort to reduce illegal immigration by forcing employers to dismiss unauthorized workers rather than by using workplace raids. Californians are divided in their opinions about the new approach.

Goodyear contract to save $555 mil

A four-year master contract ratified by members of the Steelworkers will help Goodyear realize profitable growth by producing tires in North America, the company said last week. The contract enhances the competitiveness of Goodyear's USW-represented tire plants through improvements in productivity, wage and benefit savings and added flexibility, changes that Goodyear expects will provide cost savings of $215 million over the term of the contract. Combined with savings realized through pre-bargain agreements to reduce staffing levels at five plants, the company expects to realize $555 million in total savings over the life of the contracts.

On strike! Labor gets tough

When faced with factory closures, workers fight back with mixed results. CNN takes a look at labor's wins and losses as they battle layoffs during the recession.

PASSING THE BATON

Your trusty WorkWeek editor is taking a breather. Editor Brett Gorovsky will be taking the reins starting with next week's issue, and we'll be cycling in and out every few months from there. I'll be leaving WorkWeek in very good hands.

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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.