WorkplaceHorizons.comhttp://www.workplacehorizons.com/home/Management Perspectives on Trends in Workplace Regulationen-US2009-07-04T06:44:07ZSquarespace Site Server v5.5.4 (http://www.squarespace.com/)Sotomayor Would Bring Familiarity with Labor & Employment Issueshttp://www.workplacehorizons.com/home/2009/6/12/sotomayor-would-bring-familiarity-with-labor-employment-issu.htmlworkplacehorizons.com2009-06-12T15:48:03ZIn 18 years on the federal bench, President Obama’s first Supreme Court nominee Judge Sonia Sotomayor has authored a number of published opinions in employment and labor cases. In addition to the usual range of Title VII discrimination lawsuits, as a district court judge for the Southern District of New York, Sotomayor handled FLSA class actions, Equal Pay Act claims, and a variety of traditional labor cases involving strikes, grievance-arbitration procedures, collective bargaining, and pre-emption. Perhaps her most famous decision in the labor arena occurred in Silverman v. MLBPRC, whereshe issued an injunction sending the parties back to the bargaining table and ending the Major League baseball strike that had caused the cancellation of the playoffs and World Series in 1994. As an appellate judge on the Second Circuit Court of Appeals, Sotomayor sat on the three-judge panel that heard Ricci v. DeStefano, currently under review by the U.S. Supreme Court, and affirmed the district court’s ruling that the City of New Haven, Connecticut, properly threw out the results of a promotional exam on the grounds that the exam had a disproportionately negative impact on African-American firefighters.

Some patterns emerge from Sotomayor’s decisions. For example, while she regularly granted summary judgment in favor of the employer in race and age discrimination cases, she ruled in favor of the employee in the four disability discrimination cases and the two sexual harassment cases she considered while on the Court of Appeals. And, while she ruled against management in the Silverman case, more of her labor decisions have favored the company, including decisions upholding arbitration provisions and management’s right to bargain for restraints on trade. Given her broad experience in this area of the law, it seems likely that Judge Sotomayor will play a key role in future employment and labor decisions should she be confirmed.

]]>Amendments to FMLA Proposedhttp://www.workplacehorizons.com/home/2009/5/11/amendments-to-fmla-proposed.htmlworkplacehorizons.com2009-05-11T20:51:44ZTwo bills were recently introduced that would amend the Family and Medical Leave Act ("FMLA") and its regulations. The Family and Medical Leave Restoration Act would repeal and revise FMLA regulations implemented in November 2008. Generally, the Family and Medical Leave Restoration Act would give employees more rights under the FMLA. The Family and Medical Leave Inclusion Act would expand the reasons an employee could take FMLA leave. We have added both bills to our Watch List.

]]>Amendments to the Fair Labor Standards Act Proposedhttp://www.workplacehorizons.com/home/2009/5/8/amendments-to-the-fair-labor-standards-act-proposed.htmlworkplacehorizons.com2009-05-08T23:50:31ZOn April 28, 2009, a bill to expand the coverage of the Fair Labor Standards Act (“FLSA”) was reintroduced in the House and Senate. The Fair Pay Act is intended to address the issue of unequal pay in jobs traditionally held by members of a particular gender, race, or national origin. For example, sponsors of the bill note that women earn roughly 78 cents for every dollar earned by men and attribute this difference in part to lower pay for jobs traditionally held by females. The bill would attempt to remedy that pay differential by requiring employers to pay equal wages to workers in jobs that are different, but involve similar skills, responsibilities, and working conditions. We have added the bill to our Watch List.

]]>400+ Decisions Issued by Two-Member NLRB May Be Invalidhttp://www.workplacehorizons.com/home/2009/5/7/400-decisions-issued-by-two-member-nlrb-may-be-invalid.htmlworkplacehorizons.com2009-05-07T19:55:41ZThe National Labor Relations Board has been understaffed since January 2008, when two of the Board’s four sitting members stepped down as their terms expired. Since that time, the vacated seats have remained open and relatively unnoticed, while the Board’s two remaining members continued to issue decisions and orders in representation and unfair labor practice cases. On Friday, May 1, the Seventh and D.C. Circuits simultaneously issued conflicting decisions governing the NLRB’s ability to issue two-person decisions, placing the 400+ decisions and orders issued by the two-member panel over the past 16 months in jeopardy.

The Circuit Courts came to opposite conclusions after reviewing the same section of the NLRA which addresses when the Board may operate with fewer than three members. According to the Seventh Circuit, § 3(b) of the NLRA permits a two-member board as long as a group of no fewer than three members delegated its power to the two-member board, which occurred before the two appointees stepped down in January 2008. The D.C. Circuit disagreed, ruling in a separate case that § 3(b) requires a quorum of not less than three members at all times. Because any NLRB decision can be appealed to the D.C. Circuit, there is serious concern that parties who had decisions issued by the two-person panel will appeal, placing 400-plus decisions and orders at risk of being invalidated. At least ten other lawsuits questioning the legality of decisions issued by the two-member Board have been filed in various federal appeals courts, and cases are pending in the Second and Eighth Circuits.

]]>Justice Souter’s Resignation of Interest to Businesshttp://www.workplacehorizons.com/home/2009/5/4/justice-souters-resignation-of-interest-to-business.htmlworkplacehorizons.com2009-05-04T21:32:10ZWith the announcement of Justice David Souter’s impending retirement, the speculation regarding the effect his departure will have on the composition of the United States Supreme Court begins. Given that Justice Souter commonly votes with the liberal wing of the Court, and that Mr. Obama will presumably nominate a reliably liberal jurist to replace him, the common wisdom is that Souter’s resignation is unlikely to change the Court’s current 5-4 conservative/liberal balance. However, a closer examination shows Souter’s record to be a mixed one. While Souter has been a consistent defender of civil liberties and his rulings in the employment context are generally pro-employee, he has also sided with law enforcement and business on a number of occasions. Souter recently authored employment opinions that increased the evidentiary burden on employers defending certain types of age discrimination cases and expanded Title VII’s anti-retaliation provision to cover statements employees make during internal investigations. However, Souter also authored the majority opinion in last year’s Exxon-Valdez case that slashed Exxon’s liability for punitive damages by 80% -- from $2.5 billion to around $500 million. A different vote would have allowed the original damage award to stand. Thus, it’s apparent that, on some issues important to business, Souter’s replacement on the bench will not be entirely inconsequential.

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