For the Week of October 19, 2009

KEY CASES

1stCir: McDonnell Douglas evidentiary framework revives employee's age bias claims

A 56-year-old employee who was discharged for receiving gifts from his employer's suppliers, and then selling them for personal gain, may go forward with his age bias claims under the ADEA and Puerto Rico law, held the First Circuit. While the district court concluded that the employee could not raise triable issues as to whether the stated reasons for his discharge were a pretext for age bias, and that it was therefore unnecessary to decide definitively whether he had established a prima facie case, the First Circuit disagreed. Even though the Supreme Court recently clarified in Gross v FBL Fin Servs Inc, that "plaintiffs must establish that age was the 'but-for' cause of the employer's adverse action," it "'ha[d] not definitively decided whether [the] McDonnell Douglas's evidentiary framework, utilized in Title VII cases, is appropriate in the ADEA context, explained the circuit court.'" "Until told otherwise by the Supreme Court, we shall continue to do so," held the First Circuit. Applying the McDonnell Douglas framework to the case, the circuit court determined that the district court did not properly analyze the prima facie case, finding that the employee met his burden. The circuit court also found that triable issues existed as to pretext based on the employer's shifting explanations for the employee's discharge, the company's ambiguous company policy on gifts and "the fact that in response to arguably similar conduct by younger employees, [the employer] took no disciplinary action." (Velez v Thermo King de Puerto Rico, October 16, 2009).

2ndCir: Nonmember not liable for fees imposed by public union

A union was not entitled to levy charges on non-union employees for various activities, the Second Circuit ruled, reversing a district court's opinion in the agency shop case. The employee objected to: (1) charges imposed by the union to subsidize its political activities performed in an effort to obtain a new contract; (2) lobbying done by the union's state affiliate; (3) sending delegates to an annual convention; and (4) the union employees' salaries. The Second Circuit held that political activities aimed at securing a new contract may be chargeable to nonmembers if they are pertinent to the union's role as a bargaining representative; nonmembers may also be liable to fees to subsidize lobbying efforts performed by a parent union on behalf of a local if the lobbying will ultimately create a benefit for the local's members. Remanding the case to the district court, the court ruled that the record was insufficient to make a ruling on the claims regarding the fees relating to the new contract drive, the state union's lobbying, the convention and the salaries. The court also reversed the district court's dictate that the employee pursue his claims through arbitration, ruling that, as a nonmember, he had not agreed to arbitrate his claims (Seidemann v Bowen, October 15, 2009).

7thCir: Only written complaints are FLSA-protected activity; rehearing denied

In a 7-3 vote, the Seventh Circuit denied an employee's petition for panel rehearing and rehearing en banc of a decision holding that employees must complain in writing in order to be protected under the FLSA's anti-retaliation clause. In June, a three-judge panel rejected the Secretary of Labor's contention that the retaliation provision should be read expansively to include such unwritten objections, reasoning instead that the provision refers to "filing" a complaint, which connotes a complaint made in writing. Accordingly, the panel ruled that the employee did not engage in protected activity because he only made verbal complaints about FLSA violations. Dissenting from the denial of rehearing, Judge Rovner wrote that, in deeming the statutory language to reach only written and not oral complaints, the court had taken a position contrary to the longstanding view of the DOL. Rovner noted that virtually any step that an employee may take in pursuit of his or her rights prior to filing a complaint with the DOL may be done by either the spoken or written word. "Oral inquiries, protests, and information supplied to an agency representative play no less an important role in the statutory scheme than do letters, e-mails, and sworn statements," she said, concluding "they must be protected as well." (Kasten v Saint-Gobain Performance Plastics Corp, October 15, 2009).

EDTenn: Reservist entitled to jury trail on USERRA claim seeking liquidated damages

A naval reservist, who asserted he was discharged from his job because of his military obligations, could seek a jury trial on his USERRA claim seeking lost wages and benefits as liquidated damages, a federal district court in Tennessee ruled. The court noted that whether a party has a right to a jury trial on a USERRA claim is unsettled and no court of appeals has decided the issue. However, several district courts have addressed the issue and all have held that a right to a jury exists on claims for liquidated damages under USERRA, and the employer failed to cite any authority in which a court has ruled otherwise, the district court wrote. It found the reservist was entitled to a jury trial because: (1) under the Seventh Amendment, the right to jury trial extends to causes of action created by Congress; and (2) Congress intended to create a right to a jury trial on USERRA claims for liquidated damages. Accordingly, the court denied the employer's motion to strike the employee's demand for a jury trial (Helton v Flowers Bakery of Cleveland LLC, October 9, 2009).

MDFla: Employee RIF'd three minutes after returning from medical leave

A 56-year-old administrative specialist, who was discharged in an alleged reduction-in-force (RIF) three minutes after returning to work from an approved medical leave, may go forward with her FMLA interference claim, held a federal district court in the Middle District of Florida. While the specialist was on leave, the company decided to trim approximately $1.1 million from its budget by cutting its discretionary spending and eliminating 55 jobs. The company claimed that it picked the positions to be eliminated by determining what money needed to be saved and by deciding what job duties could be absorbed by existing employees. The specialist, who was RIF'd three minutes after returning to work from her medical leave, was told by HR that no administrative specialist jobs were open, yet she discovered the company posted notices for three such jobs within days of her discharge. "While the FMLA does not require an employer to keep an employee indefinitely after she returns from medical leave, the law's protections extend beyond reinstating a person to a job for three minutes," held the court, and "[r]eturning to a position only long enough to be fired does not amount to a meaningful reinstatement under the statute." Further, looking at the required years of experience, education and responsibilities of the open positions, triable issues existed as to whether at least one of the jobs posted at the time of her discharge was sufficiently "equivalent" to her old job to entitle her to reinstatement under the Act, found the court. While "thin," the specialist also raised triable issues as to whether she was fired because of her age (Burke v Laboratory Corporation of America, October 6, 2009).

NDInd: ADAAA does not apply to or influence analysis of pre-ADAAA "regarded as" claim

Noting that the ADA Amendments Act of 2008 (ADAAA) does not apply retroactively, and refusing to use the Congressional intent of the ADAAA to influence its interpretation of the ADA as it existed in 2007, a federal district court in Indiana concluded that a former employee with a lifting restriction's "regarded as" disabled claim could not survive summary judgment. The court declined the employee's invitation to apply the Ninth Circuit's position that "'the ADAAA sheds light on Congress' original intent when it enacted the ADA'" because it conflicted with Seventh Circuit precedent "instructing courts to use not only the laws but also the 'interpretations that were in force when the complained-of-acts occurred.'" Applying Supreme Court precedent in Toyota Mfg, Ky, Inc v Williams and Sutton v United Air Lines, Inc that was expressly overturned by the ADAAA, the district court found the employee failed to show her employer regarded her as having a disability that substantially limited her in the major life activity of working. Under circuit precedent, her twenty-five pound lifting restriction was not substantially limiting, and she offered no evidence showing that her restriction, or perceived restriction, would prevent her from performing a broad class of jobs or securing other similar employment (Brooks v Kirby Risk Corp, October 5, 2009).

STATE LAW CASES

CA: Employee's FEHA rights violated; court denies Albertsons' motion for nonsuit

A trial jury's finding, and its accompanying $200,000 award, that Albertsons violated the rights of an employee who needed accommodation after cancer surgery under the state's Fair Employment and Housing Act (FEHA) was affirmed by a California Court of Appeal. As a result of undergoing chemotherapy and radiation treatment that affected her salivary glands, the employee, a checker at Albertsons, needed to have water with her at all times and, as a result, be able to go to the bathroom at frequent intervals. This request had been accommodated by her employer for a year when a new senior manager, who had no knowledge of the prior arrangement, stopped honoring the request. As a result, the employee was forced to urinate on herself, thereby suffering acute emotional distress that triggered a post-traumatic stress disorder caused by a past history of several tragic incidents. While Albertsons asserted that the trial court improperly denied its motion for a nonsuit because – since this was a one-time incident – there was no actionable failure to accommodate the employee, the appellate court disagreed. The appellate court rejected the employer's broad view that an employee must continue the interactive process even after an accommodation is granted, which in this case meant alerting the new manager of her disability and the agreed upon accommodation. "Acceptance of this argument," wrote the court, "would require us to blur the distinctions between these two different violations of the FEHA—the failure to engage in a good faith interactive process to determine a reasonable accommodation for an employee's disability and the failure to provide a reasonable, agreed-upon accommodation." As was demonstrated by this case, the court concluded, a single failure can have tragic consequences for an employee who is not accommodated (A.M. v Albertsons, LLC, October 15, 2009).

CA: Massive summary judgment materials produced error

In a case involving what a California Court of Appeal said "may well be the most oppressive motion ever presented to a superior court," the appellate court reminded trial courts of their inherent power and encouraged them to use it when appropriate. The case, which involved harassment, discrimination and retaliation claims brought by a man of Pakistani ancestry, placed a total of 5,415 pages of material before the trial court and produced an order granting summary judgment that purported to sustain without explanation 763 out of 764 objections to evidence. It was characterized by the appellate court as the "poster child" for criticism of summary judgment procedure in employment litigation. In particular, critics of summary judgment say that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer's favor, and sometimes requiring the employee to essentially prove their case at the summary judgment stage. Here, the misleading picture painted by the mass of paper and the error that resulted was "undoubtedly related." Apparently the trial court did not read all of the papers, as shown by the facts that it sustained "objections" to evidence where no objection was set forth and saw a "physical assault" despite evidence of "arm wrestling." Wrote the appellate court: "While not reading the papers cannot be condoned, it can perhaps be understood…The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard." (Nazir v United Airlines, Inc, October 9, 2009).

MA: References to settlement negotiations properly allowed

During the trial of a female employee's state law quid pro quo sexual harassment and reprisal claims, a trial court properly allowed an employer to introduce into evidence references to the parties settlement negotiations, held the Massachusetts Supreme Judicial Court. Typically, settlement offers are inadmissible to prove or disprove a defendant's liability or damages, but there as exceptions, explained the supreme court. Factual statements made during the course of settlement negotiations are admissible. At issue was a letter written by the company's CEO to the employee's attorney, which stated that while she remained an employee of the company, her access would be restricted, including access to the physical facility, proprietary information and strategic planning; the CEO wrote the letter because the employee stated an intention during settlement negations to leave the company and compete with it. The letter was probative of whether the work restrictions imposed by her employer subsequent to the filing of her claims were imposed for a nonretaliatory purpose. Specifically, the statements made in settlement negotiation correspondence were properly admitted for the purpose of demonstrating the employer's state of mind at the time it imposed the work restrictions on the employee (i.e., the negotiations were relevant for a purpose other than liability or damages). The trial court also did not err in admitting evidence of the employee's clothing, speech and conduct because not only did the employee's attorney "first elicit…testimony" of this type, such evidence was probative of whether she was "subjectively offended" by her work environment or by her coworker's alleged conduct (Dahms v Cognex Corp, October 15, 2009).

MA: State appeals court upholds racial discrimination award

The Massachusetts Appeals Court affirmed a lower court's ruling that an employer engaged in race bias. After his supervisor referred to the employee as a "[expletive deleted]" the employee filed a complaint with the employer, but several weeks later, following a scheduling snafu, the employer discharged the employee. A hearing was held and the testimony of the supervisor and president were excluded due to the employer's abrupt insistence, days before the hearing, that subpoenas had to be served and because the employer gave inadequate notice of its intent to call the president; the discovery deadline was, at that time, days away. The court affirmed the lower court's findings. The supervisor's exclusion was acceptable because the employer's actions were a bad-faith attempt to frustrate the discovery process and, the president's exclusion was allowed as it was harmless, in that the same result would have occurred regardless. The court also affirmed the finding that a single racial epithet could serve as the basis for liability. The word, ruled the court, is "degrading, it is humiliating… and ha[s] no place in the working environment." The employer bore the liability because, under state law, it was responsible for bias practiced by its agents (Augis Corp v Massachusetts Commission Against Discrimination, October 14, 2009).

TN: Medical center did not violate statute by firing employee who ignored adoption policy

A Tennessee medical center's discharge of a surgical technician who attempted to improperly facilitate the adoption of an infant born at the center did not violate an unambiguous statutory provision, the Tennessee Court of Appeals ruled, affirming a trial court's award of summary judgment to her employer. While the technician admitted that her conduct—alerting a friend's son and daughter-in-law that a baby might be available for adoption—violated center procedures, she contended that she was not aware of the policy at the time in question and that termination of her employment constituted a retaliatory discharge because it violated the clear public policy of Tennessee. Noting that the center provides employee training regarding the confidentiality provisions under HIPAA, the court found that the statute relied upon by the technician (Tenn. Code Ann. §36-1-108(a)) did not create any right that she did not possess in the absence of the statute. Further, the court reasoned, while adoption is an important public policy of the State of Tennessee, termination of her employment under the circumstances did not rise to the level of violation of public policy necessary to sustain a cause of action for retaliatory discharge (Morton v Covenant Health Corp, October 13, 2009).

AGENCY RULINGS

DOL ARB: Cover-up of motivation for discharge did not toll limitations period for SOX whistleblower claim

Equitable tolling or estoppel did not apply to the SOX whistleblower claim of an employee, who claimed she was misled into believing that the reason for her discharge was the elimination of her job duties, the DOL's Administrative Review Board (ARB) ruled. In the summer of 2005, the employee was working as an architect for a national retailer when she complained to her immediate supervisor that security vulnerabilities in the company's information systems exposed it to potential Securities and Exchange Commission violations. In mid-November 2005, her supervisor told her that her job duties were being eliminated and her employment would end in January 2006. She was not actually terminated, however, until April 21, 2006. On July 19, 2006, she learned from an employee of the retailer that other workers were performing many of her former job duties. On October 13, 2006, she filed her SOX whistleblower complaint with OSHA, asserting that the time period for filing her complaint began to run on July 19, 2006, when she first learned her job duties had not been eliminated. An Administrative Law Judge (ALJ) found that the complaint was not timely filed because, even if the 90-day limitations period was measured starting from the date of her discharge April 21, 2006 (rather than November 2005 when she was informed of her pending termination), she did not timely file her complaint with OSHA. Affirming the ALJ's finding, the ARB wrote, "[c]oncealing the reason for an adverse employment action does not toll the statute of limitations governing a whistleblower claim, nor does it estop the employer from asserting timeliness as a defense." Moreover, the ARB reasoned, if equitable tolling and equitable estoppel applied whenever an employer gave a non-discriminatory reason for its adverse employment decisions, an employer would essentially be equitably estopped whenever it does not disclose a violation of a discrimination statute. If that were the case, the time limit for filing charges would be almost meaningless, the ARB noted (Coppinger-Martin v Nordstrom, Inc, September 25, 2009).

OBAMA ADMINISTRATION

First stimulus numbers unveiled: 30,383 jobs created or saved

30,383 jobs were created or saved since February when the President signed the $787 billion economic stimulus package into law, announced the Obama Administration on October 15. Posted on Recovery.gov, the government's website tracking stimulus spending, the data submitted by direct recipients represents only a small portion of Recovery Act spending to date since the first reporting period began October 1 and ended October 10, confirmed the Recovery Accountability and Transparency Board, which monitors Recovery Act spending and releases data. Of the total number of awards reported, 8,927 were contract awards, 102,901 were grants and 391 were loans. The contractors were awarded a total of about $16 billion and have spent approximately $2.2 billion since October 10. On October 30, final contract data, as well as the final grant and loan data, will be available. The next reporting period begins January 1, 2010. In response to the data, White House Chief Economist Jared Bernstein said: "It is too soon to draw any global conclusions from this partial and preliminary data, as it reports on just $16 billion of the $339 billion in Recovery Act efforts before September 30th, but the early indications are quite positive. The direct count by Recovery Act recipients of jobs created or saved from this small percentage of the Recovery Act exceeds our projections. All signs – from private estimates to this fragmentary data -- point to the conclusion that the Recovery Act did indeed create or save about 1 million jobs in its first seven months, a much needed lift in a very difficult period for our economy."

And speaking of recovery…

According to the National Association of Business Economics (NABE), "the recession is over." NABE's latest Outlook Survey on the economy found "that the vast majority of business economists believe that the recession has ended but that the economic recovery is likely to be more moderate than those typically experienced following steep declines." According to the survey, key areas of concern involve the large increases in federal debt and unemployment rates that are expected to remain very high through next year. The unemployment rate is forecast to rise to 10 percent in the first quarter of next year and edge down to 9.5 percent by the end of 2010, according to the survey. However, inflation is expected to remain contained throughout 2010.

Obama Administration withdraws nomination of Lorelei Boylan as WHD Administrator

On October 13, President Obama withdrew the nomination of Lorelei Boylan as Administrator of the DOL's Wage and Hour Division (WHD). According to media reports, Boylan, the current Director of Strategic Enforcement at the New York State Department of Labor, Labor Standards Division, asked that her nomination be withdrawn because of family issues. The White House first announced its intent to nominate Boylan as the Wage and Hour Administrator on April 14. The WHD is responsible for enforcing some of the nation's most comprehensive federal labor laws on topics that include the minimum wage, overtime pay, recordkeeping, youth employment and special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs and the prevailing wages for government service and construction contracts.

Senate HELP Committee schedules vote on Obama's three NLRB nominees

The Senate Health, Education, Labor and Pensions has scheduled a vote this Wednesday on the Obama Administration's three NLRB nominees: Craig Becker, Brian Hayes and Mark Pearce. The Board is awaiting confirmation of the three new members, nominated by President Obama, since July. Only two of its five seats have been filled since January 2008. Republican Peter Schaumber served as chairman until January 2009, when President Obama named Democrat Wilma Liebman as Chairman. She has served as a Member of the Board for 12 years.

AGENCY DEVELOPMENTS

$1.3 million settles sex harassment & retaliation class claims against private prison

A pattern or practice discrimination lawsuit against Dominion Correctional Services, LLC and Corrections Corporation of America, both doing business as Crowley County Correctional Facility, was settled on October 13 for $1.3 million and remedial relief. The suit was brought by the EEOC on behalf of 21 female former workers who were allegedly subjected to a sex-based hostile work environment and retaliation at an all-male, privately run medium security prison in Olney Springs, Colorado.

DOJ issues memorandum on investigations and prosecutions in states authorizing the medical use of marijuana

On October 19, Attorney General Eric Holder announced uniform guidelines on investigations and prosecutions in states that have enacted laws authorizing the medical use of marijuana. The guidelines are contained in a memo from Deputy Attorney General David W. Ogden that has been sent to US Attorneys. According to the memo, "[t]he DOJ is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels." However, "pursuit of these priorities should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." Said Ogden: "prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department."

NLRB announces new Office of Public Affairs to replace Division of Information

On October 14, the NLRB announced that a new Office of Public Affairs would replace its current Division of Information. Nancy Cleeland, who has covered major labor disputes and chronicled the underground economy at the Los Angeles Times for a decade, will direct the office. The Office of Public Affairs will be developing a modern outreach and education strategy aligned with the contemporary workforce and workplace, and with new technologies.

OSHA to issue directive on inspections related to H1N1 virus

To ensure the protection of frontline healthcare and emergency medical workers at high risk of infection with the H1N1 virus, OSHA will soon issue a compliance directive to ensure uniform procedures when conducting inspections to identify and minimize or eliminate high to very high risk occupational exposures to the 2009 H1N1 influenza A virus, announced the agency on October 14. The Directive will closely follow the CDC's Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

2010 Social Security changes announced by the SSA, no COLA increase

More than 57 million Social Security recipients will not receive a cost-of-living adjustment (COLA) in their benefits in 2010, announced the Social Security Administration on October 15. As a result, the maximum amount of earnings subject to Social Security tax will also remain fixed at $106,800 in 2010. This will be the first year without an automatic COLA since it went into effect in 1975. Because there is no COLA, the Social Security Act prohibits an increase in the maximum amount earnings subject to the Social Security tax and to the retirement earnings test exempt amounts. As a result, the maximum an employee will owe in 2010 to satisfy Social Security taxes will be $6,621.60 (or 6.2 percent of $106,800), the same amount as 2009. Due to the lack of a COLA for 2010, President Obama on October 14 announced his support for a one-time additional $250 economic recovery package for seniors, veterans and people with disabilities. The proposal would also extend unemployment benefits and COBRA continuation coverage. More information on the SSA's 2010 changes can be found in the following CCH release.

LEGISLATION

House approves conference report for Homeland Security Appropriations bill

On October 15, the House approved the conference report for the $42.8 billion Fiscal Year 2010 Homeland Security Appropriations bill (H.R. 2892) in a 307-114 vote. The bill includes various immigration measures, among them a three-year extension of the federal government's E-Verify program and $137 million to operate the program and further improve its accuracy and compliance rates. The bill also extends the Special Immigrant Nonminister Religious Worker Visa Program, the Conrad 30 J-1 program and the EB-5 Regional Center Pilot Program for three years. The conference report awaits final consideration in the Senate, which is expected to occur this week.

Representatives introduce jobs creation bill

A bill (H.R. 3784) that would amend the Internal Revenue Code to expand the Work Opportunity Tax Credit (WOTC) was introduced on October 8 by Representatives Tom Rooney (R-Fla) and John Boccieri (D-Ohio). The WOTC is federal tax credit available to all private sector businesses designed as an incentive to employers to hire individuals in certain targeted groups who consistently experience high rates of unemployment due to a variety of employment barriers. Called the Helping Invigorate and Revive our Economy (HIRE) Act of 2009, the bill would increase the income tax credit for employers for each hire that is eligible under the current WOTC criteria up to 50 percent and create a new income tax credit for all other hires outside the current WOTC up to 30 percent. In addition, the bill would also increase the maximum wage eligibility for veterans under the current WOTC from $12,000 to $16,000. Finally, the bill would increase tax credits for employers who offer childcare services or benefits to employees up to 35 percent. Currently, the WOTC is set to expire on August 31, 2011. The HIRE Act would make these provisions permanent. The bill has been referred to the House Ways and Means Committee.

Rep. Gutierrez outlines core principles for his comprehensive immigration reform bill

At a rally October 13 in Washington DC, Representative Luis V. Gutierrez (D-Ill) outlined to a crowd of thousands the core principles for his comprehensive immigration reform bill, which he plans to introduce in the House later this fall. Gutierrez has been actively talking to advocacy and civil rights groups, faith-based groups, labor groups and his colleagues on the Hill to identify the most essential components of such a comprehensive bill. In a statement, Gutierrez said: "We simply cannot wait any longer for a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it. It is time we had a workable plan making its way through Congress that recognizes the vast contributions of immigrants to this country and that honors the American Dream."

California governor vetoes fair pay, E-Verify bills as state legislature ends 2009 session…

For the third year in a row, Governor Arnold Schwarzenegger (R) vetoed a bill (A.B. 793) modeled after the federal Lilly Ledbetter Fair Pay Act (P.L. 112). In his October 11 veto message Schwarzenegger wrote: "[t]he bill seeks to address the United States Supreme Court's decision in Ledbetter v Goodyear Tire & Rubber Co, which dealt with an interpretation of federal law. However, Congress has already abrogated this decision by enacting the Lilly Ledbetter Fair Pay Act earlier this year. Therefore, this bill is unnecessary as it addresses a decision that has been mooted by subsequent legislation that has no direct application in California. Moreover, as drafted, this measure is far more expansive than the federal law and could pose unreasonable and unlimited liability for California employers." Schwarzenegger also vetoed legislation (A.B. 1288) that would have prohibited the state or local governments from requiring employers, other than those that government entities, from using E-Verify except when required by federal law or as a condition of receiving federal funds.

…while signing a bill recognizing out-of-state same-sex marriages

Originally vetoing the bill, on October 11, Governor Schwarzenegger signed into law a bill (S.B. 54), which allows the state to recognize same-sex marriages performed outside California between June 16, 2008, when the state supreme court legalized same-sex marriage, and November 5, 2008, when Proposition 8, which banned same-sex marriage took effect. In addition, the law also requires that California recognize the union of couples that marry in states where same-sex marriage is legal. However, because Proposition 8, which passed by a 42 percent to 48 percent majority, reads, "Only marriage between a man and a woman is valid or recognized in California," S.B. 54 will only provide the same legal protections that would otherwise be available to couples that enter into civil unions or domestic partnerships out-of-state.

NY governor signs green jobs, energy conservation bill

On October 13, New York Governor David A. Paterson (D) signed the Green Jobs/Green New York Act of 2009 (A.8901/S.5888), legislation establishing a $4 million training program that will create green jobs and stimulate investment in weatherization and energy efficiency improvements for residential and commercial buildings. The Act, which took effect immediately, directs the New York State Energy Research and Development Authority to establish revolving loan and green jobs training programs to retrofit homes to conserve energy. The program will target middleclass homeowners and small businesses that will pay back the loan out of what they save on their energy bills. The job-training component will focus on new entrants to the workforce and displaced workers. To help connect job seekers with the opportunities announced, Paterson also announced the launch of a new website to assist those seeking to enter the new green job sector. The site - http://www.greencareersny.com - is designed to make it easy for individuals, businesses and workforce professionals to find the State's local training programs and green job opportunities.

REPORTS

Comprehensive study reveals society's institutions have not kept up with working women

Women are half of all US workers, and mothers are the primary breadwinners or co-breadwinners in nearly two-thirds of American families, according to a report released October 16 by the Center for American Progress (CAP) and California First Lady Maria Shriver, among others. The Shriver Report: A Woman's Nation Changes Everything reviews how the overwhelming majority of families no longer conform to the traditional paradigm where men worked outside the home and women were stay-at-home moms. Such a change has impacted our societal institutions, from government, business to religion, according to the report, such that these institutions are relying on outdated models of who works and who cares for our families. The report concludes that families need more flexible work schedules, comprehensive childcare policies, redesigned family and medical leave and equal pay.

Managers' hiring practices vary by race, ethnicity, says university study

White, Asian and Hispanic managers tend to hire more white and fewer blacks than black managers do, according to a new study out of the University of Miami School of Business Administration. Using more than two years of personnel data from a large US retail chain, the study found that when a black manager in a typical store is replaced by a white, Asian or Hispanic manager, the share of newly hired blacks falls from 21 to 17 percent, and the share of whites hired rises from 60 to 64 percent.

Fashioning an agreement on immigration reform is difficult, according to report

The Obama administration has committed to tackling immigration reform. but despite all the problems of our current system – threats to the rule of law, exploitation of vulnerable newcomers, real and perceived competition with Americans for jobs and public resources – reform will be exceedingly difficult. To break this stalemate, the Brookings-Duke Immigration Policy Roundtable has proposed six policy changes, including emphasizing enforcement at the workplace, setting standards for the legalization of illegal immigrants and establishing an independent Standing Commission on Immigration, according to its October 6 report called: Breaking the Immigration Stalemate: From Deep Disagreement to Constructive Proprosals.

LATEST TWITTER UPDATES

SUPREME COURT

High court hears arguments on attorney fee enhancement for exceptional legal work

On October 14, the Supreme Court heard oral arguments in Perdue v Kenny A (Dkt No 08-970) addressing whether a reasonable attorney's fee award under a federal fee-shifting statute (42 U.S.C. §1988) can be enhanced solely based on the quality of performance and results obtained when such factors are already included in the lodestar calculation. The lodestar calculation is used by courts to award attorney's fees and is based on reasonable hours worked and a reasonable hourly rate. The case has broad implications, as the Court's decision could affect the award of fee enhancements under more than 100 federal laws, including fees in employment discrimination and wage/hour cases.

Supreme Court grants cert in federal employee's heath benefits case

The Supreme Court granted cert on October 13 in Health Care Serv Corp v Pollitt (Dkt No 09-38), deciding to address two questions: (1) whether the Federal Employees Health Benefits Act (FEHBA) completely preempts a state court suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in the Act; and (2) whether the federal officer removal statute encompasses a suit against a government contractor administering a FEHBA plan, where the contractor is sued for actions taken pursuant to the government contract.

HEALTH CARE REFORM

Finance Committee approves health reform legislation…

On October 13, the Senate Finance Committee approved by a 14-9 margin an $829 billion healthcare proposal that drew the support of one Republican and all Democrats on the Committee. But the measure now faces further uncertainty as Democratic leaders and White House officials will huddle over the coming days to merge the Finance panel bill with the more liberal measure (S. 1679) approved by the Senate Health, Education, Labor and Pensions (HELP) Committee in July. Even after passage, senators who voted to move the bill out of committee expressed concerns about the bill's effects.

…as health reform merger talks begin

On October 14, negotiations to merge two Senate Committee approved health care reform bills began as White House officials, including Chief of Staff Rahm Emanuel, Office for Health Reform Director Nancy-Ann DeParle and Office of Management and Budget Director Peter Orzag met briefly with Senate Majority Leader Harry Reid (D-Nev), Finance Committee Chairman Max Baucus (D-Mont) and Senator Christopher J. Dodd (D-Conn), who led the mark up in the HELP Committee last July. Reid expects to produce a final product to bring to the Senate floor by the end of October.

Baucus sees 60 or more votes for health reform

Senate Finance Committee Chairman Baucus said on October 15 that he believed all Senate Democrats plus a possible handful of Republicans will vote for the massive health reform bill currently being forged by Democratic leaders and White House officials. At the same time Senate Majority Leader Reid revealed that he has held private meetings with a few Republican lawmakers, fueling speculation that Senator Susan Collins (R-Maine) and possibly one or two other GOP senators are leaning towards supporting the bill.

House Ways and Means approves measure permitting reconciliation

On October 15, the House Ways and Means Committee approved a procedural measure to send its bill, the America's Affordable Health Choices Act of 2009 (H.R. 3200) to the House Budget Committee with reconciliation instructions. In late April, Congress passed a resolution allowing the reconciliation process to be used if health reform legislation had not passed by October 15. A reconciliation bill, like a budget resolution, cannot be filibustered on the Senate floor, so it only requires a majority vote to pass.

LITIGATION TRENDS

Economic downturn, rising unemployment means more labor and employment litigation, according to survey

Companies are seeing a litigation wave that corporate counsel expect to swell in the coming year, according to respondents of Fulbright & Jaworski's 6th Annual Litigation Trends Survey Report, and labor and employment disputes will account for a significant number of those lawsuits. In fact, labor and employment was cited by 45 percent of respondents as the most numerous type of litigation pending in 2009, and about four in 10 of all respondents have seen increases in wages and hour multi-party labor and employment cases this year.

IN OTHER NEWS

Ricci part two: New Haven firefighter sues over discriminatory testing

On October 15, only a few months after the Supreme Court's ruling in Ricci v DeStefano, an African-American firefighter filed suit in the US District Court for the District of Connecticut alleging that the City of New Haven violated Title VII by weighting and scoring its 2003 lieutenant exam so that it resulted in a disparate impact on African-Americans, which resulted in his promotion denial. "A lawsuit like this was certainly expected at some point or another. It was just a question of when. The larger question, however, is what will happen next," said Daniel Schwartz of the Connecticut Employment Law Blog. The High Court, in Ricci, suggested a suit like this might happen and offered a possible defense: "Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability." Said Schwartz: the language suggests that the city may have a defense to the suit. Stay tuned.

Stop textually harassing me!

Digital technology has enabled workers to be more productive, allowed them to communicate around the world instantaneously and generally redefined almost every job description on Earth. But it has also given cubicle creeps and departmental degenerates new ways to sexually harass coworkers and underlings, reports the NY Post. While texting, e-mails and comments on social media sites will never replace the grand tradition of bosses directly pressuring subordinates for sex, lawyers and consultants say digital communication has opened up a new front in the war against workplace harassment.

Court blocks New York's flu vaccine mandate for health care workers

New York State Supreme Court Justice Thomas J. McNamara has issued temporary restraining order preventing the state from mandating that certain health care workers get vaccinated for the seasonal flu and the H1N1 virus by November 30 or face fines and job loss, reports in the New York Times. In August 2009, New York State's Health Department adopted emergency regulations making approved annual influenza and novel H1N1 vaccinations mandatory, unless medically contraindicated, for health care workers in hospitals, outpatient clinics and home care services. A hearing whether to make the injunction permanent will be on October 30.

Separately, a group of New York doctors and health care workers filed suit in the US District Court for the District of Columbia against the Department of Health and Human Services and the Food and Drug Administration asking the court to order the federal government not to distribute the H1N1 vaccine. The plaintiffs are challenging vaccine's licensing, alleging it was approved without definitive prerequisite safety testing.

Labor unions turn against parts of health bill

A coalition of labor unions is emerging as a leading critic of the $829 billion Senate Finance Committee bill heading toward a Senate vote, complicating debate among Democrats over how to pay for the measure, according to USA Today. Unions had largely supported President Obama's effort to revamp the nation's $2.6 trillion health care system, but 27 labor groups have launched a campaign against key provisions in the bill passed last week by the Finance Committee. Unions want a government option in the new bill merged with the Senate HELP Committee's legislation and to remove a tax on high-priced insurance policies. The AFL-CIO, the Air Line Pilots Association and the UAW are also part of the coalition.

North Carolina to penalize obese workers, smokers

Following Alabama's lead, North Carolina is poised to become the second state to impose a fee on its state employees by placing them in a more expensive health insurance plan if they are obese, reports Cleveland.com. Smokers will not be immune either. The State Health Plan for Teachers and State Employees will ask members to self-report tobacco use and height/weight for the calculation of Body Mass Index (BMI). Those members who do not use tobacco, or have a BMI less than 40, would be able to choose the PPO Standard 80/20 plan or the PPO Basic 70/30 plan. Tobacco users and members with a BMI 40 or higher would automatically be placed on the PPO Basic 70/30 plan. Tobacco users get placed in the more expensive insurance plan starting next July and, for those who qualify as obese, in July 2011.

And while we're on the subject of health care, provisions in health care legislation under consideration in Congress would allow employers and insurers to offer premium discounts of as much as 50 percent to employees in workplace wellness programs who meet specific health targets, such as keeping their weight, cholesterol and blood pressure within healthy ranges, reports the New York Times.

And speaking of smoking, be sure and read CCH WorkDay blogger Lucas Otto's take on the unintended effect federal anti-smoking laws have had on a small sect of popular businesses: smoking lounges.

Kelly Services agrees to $11 million settlement in class action suit

Temp firm Kelly Services, Inc will pay $11 million to resolve allegations that it did not pay employees their required accrued vacation pay in violation of both the Illinois Day and Temporary Labor Services Act and the Illinois Wage Payment and Collection Act, according to a class action settlement that was approved by Judge Harry D. Leinenweber of the US District Court for the Northern District of Illinois on October 8. The court also approved fees for the plaintiffs' attorneys.

US Chamber of Commerce launches Free Enterprise Campaign

On October 14, the US Chamber of Commerce launched a media blitz in its Free Enterprise Campaign aimed at reviving the economy and creating 20 million new jobs over the next decade. Chamber Thomas Donohue said the campaign was not intended to be partisan, but "to build a compelling case for free enterprise" and call attention to what the dangers of government meddling in the private marketplace. Yet in a piece for the Huffington Post, Richard Trumpka, President of the AFL-CIO, is crying foul over the campaign. Said Trumpka: "The Chamber's campaign originally started out as an attack against financial regulation—until the Chamber found out how strongly US taxpayers support reining in Big Banks and the financial industry's widespread shady practices. So the Chamber conveniently changed the packaging to purportedly focus on jobs, which in fact the American people desperately need."

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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.