Labor & Employment

Employee's Use of Company's E-Mail System to Conduct Union Activity
The Guard Publishing Company and Eugene Newspaper Guild, CWA Local 37194
Cases 36-CA-8743-1, et al.
National Labor Relations Board

The Board agreed with NCLC and ruled that the employer did not violate Section 8(a)(1) by maintaining a policy that prohibited employees from using the employer's e-mail system for any "non-job-related solicitation."  In its brief, NCLC argued that the NLRB, in fashioning its email rules, must be cognizant of an employer's reasonable efforts to maintain its capital investments for business purposes.  Employers must have the right to set restrictions and limitations on e-mail use that preserve the business purpose of their system, and ensure the system's security and integrity. 

Amicus brief filed 2/9/07. Moot court held 3/21/07. Oral argument held 3/27/07. Decision 12/16/07.

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Narrow Interpretation of California Labor Code's Administrative Exemption
Harris v. Superior Court (Liberty Mutual Insurance)
No. S156555
California Supreme Court

As urged by NCLC, the California Supreme Court agreed to review a court of appeal ruling that drastically narrows the administrative exemption under California law, and allows a class action of claims adjusters to move forward with claims for overtime pay.  In a dramatic departure from federal law, the California appeal court held that the claims adjusters are primarily production workers and therefore not exempt from overtime requirements.  In its letter brief, NCLC argued that allowing the court of appeal decision to stand would substantially disrupt California businesses and invite massive litigation. 

Amicus letter filed 10/9/07. Petition for Review granted 11/28/07.

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EEOC Practice Relating to Disclosure of Confidential Information Without Notice
Venetian Casino Resort v. EEOC
No. 06-5361
U.S. Court of Appeals for the District of Columbia Circuit

Definition of Adverse Employment Action
Burlington Northern & Santa Fe Railway Co. v. White
No. 05-259
Supreme Court of the United States 

The Supreme Court held that actions taken by an employer that do not directly impact the terms and conditions of an employee's employment can be retaliatory if the actions are materially adverse to the employee.  The case involved a Burlington Northern & Santa Fe Railway Co. employee who was temporarily suspended from company service, pending investigation, for not accepting changes in assigned job responsibilities.  The employee asserted that Title VII protections under the Civil Rights Act of 1964 applied to such action. The Supreme Court rejected NCLC's argument that Title VII anti-retaliation section should not be used to impinge on management's traditional prerogatives to assign work.

Amicus brief filed 1/23/06.  Moot court held 4/13/06.  Oral argument held 4/17/06.  Decision 6/22/06.

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Enforceability of Releases of FMLA Claims
Taylor v. Progress Energy, Inc.
No. 04-1525
U.S. Court of Appeals for the Fourth Circuit

Upon NCLC's recommendation, the Fourth Circuit vacated its earlier decision and agreed to rehear the case that NCLC argued in its amicus brief had erroneously determined that releases of claims under the Family and Medical Leave Act (FMLA) were unenforceable unless approved by a court or the Department of Labor.   The Fourth Circuit requested that the parties file supplemental briefs on the issue.   

Amicus brief filed 8/2/05. Judgment vacated and Rehearing granted 6/14/06.  Supplemental amicus brief filed 8/17/06. 

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Misapplication of Requirements of Older Workers Benefit Protection Act (OWBPA)
Kruchowski v. Weyerhaeuser
No. 04-7118
U.S. Court of Appeals for the Ninth Circuit

NCLC urges the 10th Circuit to grant en banc review of a panel decision invalidating
releases signed during a group reduction-in-force (RIF) because the affected employees were
not informed of the RIF selection criteria and because the employer inaccurately described
the decisional unit involved, an inaccuracy that did not affect the correctness of the
actual OWBPA-required disclosures of the job titles and ages of the employees retained and
those RIF'd.

Motion to file amicus brief and amicus brief filed 9/26/05. Motion granted 9/30/05. Decision 5/2/06.

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Longshore and Harbor Workers' Compensation Act (LHWCA)
Lockheed Martin Corp. v. Morganti
No. 05-907
Supreme Court of the United States

NCLC urges the Supreme Court to review an appellate court decision awarding LHWCA benefits when the employee's work had no connection to maritime activity. NCLC argues that the Second Circuit's decision to apply LHWCA to non-maritime workers any time they find themselves over navigable waters in the course of their employment is problematic for all non-maritime businesses, particularly those who will be exposed to potential tort actions and criminal liability if they do not provide the LHWCA coverage Congress did not intend them to provide. 

Amicus brief filed 4/24/06. Cert. denied 5/30/06.

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Definition of "Disability" under Maine Human Relations Act
Whitney v. Wal-Mart Stores
No. FED-05-172
Supreme Judicial Court of Maine

The Supreme Court of Maine upheld the broadening of the definition of "disability" under the state's anti-discrimination statute.  The Supreme Court ruled that a discrimination claim brought under state law, based on a person's physical or mental disability, need not require that person show that their condition imposes a "substantial limitation on a major life activity."  In effect, the Court's ruling means that the anti-discrimination protections under Maine's Human Rights Act are available to a far broader group of workers than those available under the Americans with Disabilities Act (ADA). 

Amicus brief in support of defendant Wal-Mart filed 7/1/05.  Decision 4/11/06.

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Nature of Title VII's 15 Employee Threshold Requirement
Arbaugh v. Y & H Corp., dba The Moonlight Cafe
No. 04-944
Supreme Court of the United States
 
NCLC will urge the Supreme Court to resolve a split in the Circuits and rule that Title VII's threshold applicability requirement that an employer have 15 employees is a jurisdictional requirement.  As such, this "bright line" issue should be decided by the judge at the outset of the case, rather than it being submitted to the jury as part of the jury's consideration of the merits.  In addition, as a jurisdictional requirement, it would not be waived if not raised initially in the case. As a practical matter, NCLC will point out that small businesses are unlikely to be aware of this issue and so may fail to raise it initially, that small businesses can least afford to bear the costs of discovery and trial that would have to be incurred if resolution of this issue is put off until the case goes to the jury, and that a jury's consideration of this issue may be unfairly tainted by its view of the merits.      
 
Amicus brief to be filed 10/5/05. Oral argument held 1/11/06. Decision 2/22/06.

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Certification of Class Action under Title VII
Reeb, et al. v. Ohio Department of Rehabilitation & Correction
No. 04-3994
U. S. Court of Appeals for the Sixth Circuit

NCLC urges the Sixth Circuit to reverse the district court's certification of a class of female state prison employees who allege sex discrimination in violation of Title VII.  This is the second time the Sixth Circuit has granted interlocutory review to evaluate the district court's certification of the class in this case.  NCLC argues that, even upon its second review, the district court still has failed to conduct a "rigorous analysis" as was so ordered by the appellate court and is required under Federal Civil Rules of Procedure Rule 23(a).  In addition, NCLC argues that the fact that the plaintiffs are asking for compensatory and punitive damages in this case renders it unsuitable for Rule 23(b)(2) certification. 

Amicus brief in support of defendant-appellant and in support of reversal filed 10/19/04. Decision 1/24/06.

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Improper Use of Medicare Secondary Payer Statute Against Employers
Telecare Corporation v. Leavitt
No. 05-263
U. S. Supreme Court (Certiorari)
 
NCLC urges the Supreme Court to grant review and reverse the Federal Circuit in this case
involving the Medicare Secondary Payer ("MSP") statute. Under that statute, a private group
health plan (as a primary insurer) must first pay any covered medical expense; Medicare
will only reimburse uncovered eligible expenses.  When Medicare erroneously pays health
care expenses that are the responsibility of a primary health plan, its reimbursement
rights are governed by the MSP statute.  This case involves a challenge to the government's
growing practice of seeking such reimbursement from plan-sponsoring employers who have
noobligation to pay those health care expenses, but have instead contracted with a
third-party insurer to cover those expenses.  The Federal Circuit concluded that the
government's practice is authorized by the Medicare Secondary Payee (MSP) statute.  NCLC
contends that Medicare is not authorized to obtain reimbursement from employers who are
only a plan sponsor because such employers are not "required or responsible" to cover
health care expenses for purposes of the MSP statute; their only obligation is to pay the
insurance premiums they owe to the plan's third-party insurer.
 
Amicus brief filed 9/28/05. Cert. denied 1/9/06.

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Religious Discrimination and Employee Affinity Groups
Moranski v. General Motors Corporation
No.05-1803
U. S. Court of Appeals for the Seventh Circuit

Urging the Seventh Circuit to affirm the district court's ruling dismissing the complaint, NCLC argues that GM's decision to disallow company-sponsored employee affinity groups that promote positions concerning religion does not violate the anti-religious discrimination provisions of Title VII. This is not discrimination based on the employee's religion, as the ban applies to any group that seeks to advance a particular position about religion; it is not dependent upon any particular religious affiliation, and does not distinguish between any religious denominations.

Motion for leave to file and amicus brief filed 6/18/05. Decision 12/30/05.

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Defending Against Attack on Cash Balance Plans
IBM v. Cooper
No. 05-3588
U. S. Court of Appeals for the Seventh Circuit

Pointing out that cash balance plans have positive attributes over traditional pension plans for both employees and employers and that invalidating cash balance plans will have drastic consequences for the nation's retirement system, NCLC argues that the district court's conclusion that cash balance plans violate ERISA's prohibition on age discrimination is based on a plan feature that both the IRS and the 7th Circuit have determined is required.  NCLC argues that that the district court's interpretation of ERISA conflicts with another decision by the 7th Circuit, is incompatible with the rest of the law, and produces an irrational result.  This is the first case in which a federal court has invalidated a cash balance plan based on ERISA's prohibition against age discrimination.

Amicus brief filed 11/2/05 along with motion for leave to file. Cert. denied 11/08/05.

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Certification of Class Action under Title VII
Grosz v. The Boeing Company
No. 04-55428
U. S. Court of Appeals for the Ninth Circuit

NCLC urges the Ninth Circuit to affirm the district court's decision to deny certification of this class of employees who are alleging employment discrimination in violation of Title VII.  NCLC argues that certification of this class is improper in that it involves thousands of individual employment decisions made by several hundred different managers using both subjective and objective criteria.  Further, NCLC argues that certifying a large Title VII class action for damages pressures employers to settle the claims regardless of their merits or lack thereof.

Amicus brief in support of Petitioner filed 10/4/04.  Oral argument held 3/8/05. Decision 7/5/05.

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Federal Preemption of County "Peace Agreement" Ordinances
Metropolitan Milwaukee Association of Commerce v. Milwaukee County
No. 05-1531
U. S. Court of Appeals for the Seventh Circuit

In this federal labor law preemption case, NCLC urges the Seventh Circuit to reverse a lower court decision upholding a county ordinance which requires certain County-paid patient transport and patient care contractors to enter into labor peace agreements. The ordinance also impermissibly interferes with the federal scheme for regulating the union organizing process.

Amicus brief filed 4/19/05. Decision 12/5/05.

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ERISA Liability for Pension Investment Decisions
Langbecker, et al. v. Electronic Data Systems Corporation, et al.
No. 04-41760
U. S. Court of Appeals for the Fifth Circuit

Following a fall in the EDS stock price during the market-wide drop in technology stocks in 2000, plaintiffs filed a class action lawsuit claiming that EDS and others violated ERISA by offering EDS stock as an investment option under the EDS 401(k) plan. Among other things, the lower court held that because this case was brought as a class action on behalf of the Plan, neither the releases signed by individual plaintiffs nor section 404(c) of ERISA, which made the plan participants responsible for their own 401(k) investment decisions, applied to the case. On an interlocutory basis, the 5th Circuit agreed to review these and other rulings. NCLC argued that both the releases signed by plaintiffs and the 404(c) defense bar a recovery by the plaintiffs in the case. NCLC also pointed out that the lower court rulings serve to undermine the favored status federal law confers on participant-directed investment in company stock via 401(k) plans.

Amicus brief in support of defendants/appellants filed 3/8/05. 

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Certification of Class Action Employment Discrimination Suits
Cooper v. Southern Company
No. 03-12230
U. S. Court of Appeals for the Eleventh Circuit

NCLC had urged the Eleventh Circuit to affirm the district court's decision denying the class certification of a class of over 2,000 current and former employees of Southern Company.  NCLC argued that "across the board" class claims of discrimination are not appropriate after the Civil Rights Act of 1991, which expanded the relief available to employees and added the right to a jury trial.  In addition, NCLC argued that the district court should make a "rigorous analysis" of the evidence supporting class certification to avoid clogging the courts with the filing of frivolous class action claims. 

Amicus brief filed 7/16/03.  Motion to file amicus brief denied 10/04.

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Recognition Bar and Neutrality/Card-Check Agreements
Dana Corporation and Clarice K. Atherholt and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO
Case 8-RD-1976

Metaldyne Corporation and Alan P. Krug and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO
Cases 6-RD-1518 and 6-RD-1519
National Labor Relations Board

In response to a request by the Board for amicus briefs in these combined cases, NCLC urges the National Labor Relations Board to overturn the recognition bar doctrine.  The recognition bar doctrine prohibits the filing of decertification petitions after a "reasonable period of time" after an employer recognizes a union based on a card-check agreement.  NCLC argues that an NLRB-supervised secret ballot election is the most accurate method of determining employees' support for a union.  NCLC further notes that the Board has developed a disturbing trend of restricting employee free choice once a union has been recognized, thus making it virtually impossible for any party (employer, employee or rival union) to challenge a union's majority status.
  
Amicus brief filed 7/15/04. 

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Tort Law and Undercover Investigations in the Workplace
Earnest Johnson v. Kmart Corporation and Investigative Consultants, Inc. 
No. 89037
Illinois Supreme Court

 

NCLC argued that the tort of "intrusion upon the seclusion of another" should not be expanded to incorporate an employer's investigation to combat employee crime.  NCLC further argued that expanding tort law to include such investigations infringes upon an employer's legitimate business interest in eradicating employee theft and substance abuse, at a significant cost to industry, employees, and consumers.

 

Amicus brief filed 6/9/00.  Statement regarding the current status of the bankruptcy stay entered in the case ordered 6/26/03.  Statement regarding the current status of the bankruptcy stay entered in the case due 7/28/03.  Joint motion to dismiss appeal granted 3/17/04.

 

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State-Imposed Ergonomics Standard
Washington Employers Concerned about Regulating Ergonomics, et al. v. Wash. Dept. of Labor & Industry
No. 73020-2
Washington State Supreme Court

 

This case has been dismissed in light of the business sponsored voter initiative repeal of Washington's ergonomic rule.  The legal challenge was one part of a multi-pronged effort to overturn the state rule.  In response to the passage of the voter initiative in November 2003, the court determined this case moot on February 6, 2003.  This represents a tremendous victory for the business community.  The Washington state Department of Labor and Industries is now working with a business-labor advisory committee to address ergonomics through voluntary information and outreach.

 

Amicus brief filed 12/02.  Argument held 5/22/03.  Dismissed as moot 2/6/04.|

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Successor Employer and Collective Bargaining Agreements
Francisco Foods, Inc., d/b/a Piggly Wiggly and United Foods & Commercial Workers Union, Local No. 73A
No. 30-CA-14738/NLRB

NCLC urges the Board to overrule its decision in Love's Barbeque Restaurant, 245 NLRB 89 (1979). Specifically, NCLC argues that the Board goes beyond its remedial "make whole" powers and is imposing a penalty when it denies a successor employer the right to adopt initial terms and conditions of employment if the successor employer discriminatorily fails to hire the predecessor employees.

Amicus brief filed 7/31/02. Settled by parties 2004.

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Sex Discrimination and Contraceptives
Erickson v. Bartell Drug Company
No. 01-35870
U. S. Court of Appeals for the Ninth Circuit
 
NCLC urged the Ninth Circuit to reverse a lower court ruling holding that Bartell Drugs violated the sex discrimination provisions of Title VII by failing to provide coverage for prescription contraceptives in its comprehensive drug program, even though the company does not provide coverage for many other gender-specific products, including contraceptive devices, Viagra, and infertility drugs.  The parties have agreed to a settlement of the case that includes Bartell's providing coverage of FDA-approved methods of prescription contraception.
 
Amicus brief filed 2/4/02.  Joint Motion to Dismiss after approval of Settlement Agreement and Release 3/6/03.

 

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Status of Temporary Employees
Tree of Life, d/b/a Gourmet Foods, Northeast
No. 2-CA-21569
National Labor Relations Board