Labor and the Law:

News and Current Events from the LERA Section on
Labor and Employment Law (LEL)
© 2006


September 2006

Employer's Arbitration Policy Violates the NLRA

Many employer policies require employees to arbitrate disputes that are related to employment. First, the NLRB recently found that such a policy was so broad that employees might reasonably think it prohibited them from filing charges with the National Labor Relations Board.  The policy stated that it applied to claims recognized by “federal law or regulations”. Employees could reasonably think this prohibited filing NLRB unfair labor practice charges.
Second, the policy stated that agreeing to the policy was a condition of employment. The Board majority held that employees might reasonably think this meant that they risked losing their jobs if they filed Board charges and did not use the arbitration procedures. This violated sec.8(a)(1). U-Haul Co. of California, 347 NLRB No. 34 (June 8, 2006)
The Board majority also pointed out that courts and other administrative agencies have consistently recognized that employees have a nonwaivable right to file charges with the EEOC, and that mandatory arbitration provisions that attempt to restrict such rights are void and invalid as a matter of public policy. That right is confirmed in the Older Workers Benefit Protection Act of 1990 (OWBRA): “No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission.” 29 U.S.C. § 626(f)(4).

Taxing Compensatory Damages Unconstitutional
Recently the Court of Appeals for the District of Columbia held that taxing compensatory damages that were awarded for injury to reputation and for mental anguish and distress violated the 16th Amendment to the U.S. Constitution. Therefore, the plaintiff, a whistleblower, was entitled to a refund of the federal income tax she paid on the damages award. The 16th Amendment authorizes only taxing incomes. Portions of the damage award that were not compensation for something that normally would be taxed as lost income could not be treated as income and taxed. Damages for injury to reputation or mental distress are more in the nature of restoration of capital – not income – and therefore not taxable. Murphy v. Internal Revenue Serv., Case No. 05-5139 (D.C. Cir. Aug. 22, 2006).

No District Court Jurisdiction Over NLRB ULP Proceedings
Recently the Ninth Circuit Court of Appeals held that respondents must raise and exhaust their constitutional claims within an NLRB unfair practice hearing. They may not go to district court in order to enjoin an NLRB proceeding. Once the NLRB has ruled, that proper procedure is to seek review of that decision in federal appellate court. The court noted that allowing the district court case to proceed could result in a delay of as much as three years. AMERCO v. NLRB, Case No.04-16389 (9th Cir. Aug. 10, 2006)

Wage-Hour Retaliation - State Claim and NLRA Claim for PCA?
The Massachusetts Supreme Judicial Court recently held that state anti-retaliation law protected employees who complained to management that its new tip policy violated state wage law and that they were not receiving all their tips. Therefore, they could sue the employer for unlawfully firing them in retaliation for their complaints. Smith v. Winter Place LLC, Case No.SJC-09544 (Mass. Aug. 1,2006).
Such employees might also have a claim under the National Labor Relations Act for retaliating against employees who were engaged in concerted activity concerning wages, hours, and working conditions.

Neutrality Agreement Violated
In a recent case, an arbitrator found that the employer had violated its neutrality agreement and that this violation may have caused the union's loss of a non-NLRB election that was supervised by an arbitrator. The arbitrator ruled that the employer must submit campaign materials to the union for review in future elections in order to prevent improper influence that might taint the campaign. Quebecor World Inc., Arb. Brent, 2006, (July 21, 2006).

Web Links

Partnerships That Work

American Staffing Association, Quarterly Trends in Temporary Help Services

National Institute for Occupational Safety and Health (NIOSH), Adult Blood Lead Epidemiology and Surveillance--United States, 2003-2004,"

Change to Win, The American Dream Survey - Hope and Fear in Working America

The Crisis in Federal Government Succession Planning: What's Being Done About It

Bureau of Labor Statistics, National Census of Fatal Occupational Injuries in 2005

Recent Labor and Employment Law Articles
Maria Aguirre, Contributions to Family Income: Proportions and Effects, 20 Notre Dame L.J. Ethics & Pub. Pol'y 719 (2006)

William Barnett, Walter Block & Gene Callahan, The Paradox of Coase as a Defender of Free Markets, 1 NYU J.L. & Liberty 1075 (2005)

Kathleen Bergin, Sexualized Advocacy: The Ascendant Backlash Against Female Lawyers, 18 Yale J.L. & Feminism 191 (2006)

Richard Calkins, Caucus Mediation – Putting Conciliation Back into the Process: The Peacemaking Approach to Resolution, Peace, and Healing, 54 Drake L. Rev. 259 (2006)

Peter Caldwell, Employment Agreements for the Inventing Worker: A Proposal for Reforming Trailer Clause Enforceability Guidelines, 13 J. Intell. Prop. L. 279 (2006)

Elaine Chao, 21st Century Workforce: Change, Challenge & Opportunity, 20 Notre Dame J.L. Ethics & Pub. Pol'y 785 (2006)

Miriam Cherry, No Longer Just Company Men: The Flexible Workforce and Employment Discrimination, a review of of Katherine V.W. Stone, from Widgets to Digits Employment Regulation for the Changing Workplace, 27 Berkeley J. Emp. & Lab. L. 209 (2006)

Pat Chew & Robert Kelley, Unwrapping Racial Harassment Law, 27 Berkeley J. Emp. & Lab. L. 49 (2006)

Gina Chirichigno, Comment. Crying Wolf? What We Can Learn from "Misconceptions" about Discrimination: A Transformational Approach to Anti-discrimination Law, 49 How. L.J. 553 (2006)

Adam Clanton, Enforcing Individual Rights in an Industrial World: Legal Rules and Economic Consequences, 4 Geo. J.L. & Pub. Pol'y 165 (2006)

Charles Cohen, Joseph Santucci & Jonathan Fritts, Resisting its Own Obsolescence – How the National Labor Relations Board Is Questioning the Existing Law of Neutrality Agreements, 20 Notre Dame J.L. Ethics & Pub. Pol'y 521 (2006)

William Corbett, The Narrowing of the National Labor Relations Act: Maintaining Workplace Decorum and Avoiding Liability, 27 Berkeley J. Emp. & Lab. L. 23 (2006)

Scott Cummings & Ingrid Eagly, After Public Interest Law, a review of Jennifer Gordon, Suburban Sweatshops: The Fight for Immigrant Rights, 100 Nw. U. L. Rev. 1251 (2006)

Andre Cummings, "Open Water": Affirmative Action, Mismatch Theory and Swarming Predators – A Response to Richard Sander, 44 Brandeis L.J. 795 (2006)

Sarah Duggin, The Ongoing Battle over Weingarten Rights for Non-Union Employees in Investigative Interviews: What Do Terrorism, Corporate Fraud, and Workplace Violence Have to Do with It? 20 Notre Dame J.L. Ethics & Pub. Pol'y 655 (2006)

Maria Elena Durazo, Making Movement: Communities of Color and New Models of Orgnanizing Labor, 27 Berkeley J. Emp. & Lab. L. 235 (2006)

Thomas Eron, Employment Law, 56 Syracuse L. Rev. 735 (2006)

Daniel Farber, Backward-looking Laws and Equal Protection: The Case of Black Reparations, 74 Fordham L. Rev. 2271 (2006)

Melissa. Farley, Prostitution, Trafficking, and Cultural Amnesia: What We must Not Know in Order to Keep the Business of Sexual Exploitation Running Smoothly, 18 Yale J.L. & Feminism 109 (2006)

Janice Fine, Worker Centers: Organizing Communities at the Edge of the Dream, 50 N.Y.L. Sch. L. Rev. 417 (2005-2006)

Matthew Finkin, Employer Neutrality as Hot Cargo: Thoughts on the Making of Labor Policy, 20 Notre Dame J.L. Ethics & Pub. Pol'y 541 (2006)

Fred Feinstein, Renewing and Maintaining Union Vitality: New Approaches to Union Growth, 50 N.Y.L. Sch. L. Rev. 337 (2005-2006)

James Fleming, "There Is Only One Equal Protection Clause": An Appreciation of Justice Stevens's Equal Protection Jurisprudence, 74 Fordham L. Rev. 2301 (2006)

Robert Frankhouser, The Enforceability of Pre-dispute Jury Waiver Agreements in Employment Discrimination Cases, 8 Duq. Bus. L.J. 55 (2006)

Joan Gabel, Nancy Mansfield & Gregory Todd Jones, The Peculiar Moral Hazard of Employment Practices Liability Insurance: Realignment of the Incentive to Transfer Risk with the Incentive to Prevent Discrimination, 20 Notre Dame J.L. Ethics & Pub. Pol'y 639 (2006)

Richard Golden & Joseph  Hubbard, Section 1983 Qualified Immunity Defense: Hope's Legacy, Neither Clear Nor Established, 29 Am. J. Trial Advoc. 563 (2006)

Jose Gomez, All You Who Labor: Towards a Spirituality of Work for the 21st Century, 20 Notre Dame J.L. Ethics & Pub. Pol'y 791 (2006)

Adam Gordon, Note: Making Exclusionary Zoning Remedies Work: How Courts Applying Title Vii Standards to Fair Housing Cases Have Misunderstood the Housing Market, 24 Yale L. & Pol'y Rev. 437 (2006)

David Gregory, Why Not a General Strike? 20 Notre Dame J.L. Ethics & Pub. Pol'y 621 (2006)

Joseph Grundfest & Peter Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 Stan. L. Rev. 1267 (2006)

Geoffrey Hazard, The Rhetoric of Disputes in the Courts, the Media, and the Legislature, 40 Ga. L. Rev. 559 (2006)

Charles Heckscher, Organizations, Movements, and Networks, 50 N.Y.L. Sch. L. Rev. 313 (2005-2006)

Thomas Hogan, Note: Uncertainty in the Employment Context: Which Types of Restrictive Covenants Are Enforceable? 80 St. John's L. Rev. 429 (2006)

Norma Hotaling, Kristie Miller & Elizabeth Trudeau, The Commercial Sexual Exploitation of Women and Girls: A Survivor Service Provider's Perspective, 18 Yale J.L. & Feminism 181 (2006)

Evan Hudson-Plush, Note: WARN's Place in the FLSA / Employment Discrimination Dichotomy: Why a Warning Cannot Be Waived, 27 Cardozo L. Rev. 2929 (2006)

Harry Hutchison, A Clearing in the Forest: Infusing the Labor Union Dues Dispute with First Amendment Values, 14 Wm. & Mary Bill Rts. J. 1309 (2006)

Alan Hyde, New Institutions for Worker Representation in the United States: Theoretical Issues, 50 N.Y.L. Sch. L. Rev. 385 (2005-2006)

Saru Jayaraman, Making Movement: Communities of Color and New Models or Organizing Labor: Morning Keynote Address, 27 Berkeley J. Emp. & Lab. L. 223 (2006).

Tim Kane, The Terrifying Liberation of Labor, 20 Notre Dame J.L. Ethics & Pub. Pol'y 815 (2006)

Eileen Kaufman, Discrimination Cases, 21 Touro L. Rev. 829 (2006)

Sarah Kelly & Christine Tramontano, Note: Working Today, 50 N.Y.L. Sch. L. Rev. 597 (2005-2006)

Samuel Krislov, Do Free Markets Create Free Societies? 33 Syracuse J. Int'l L. & Com., 155 (2005)

Minna Kotkin, Review of Theresa M. Beiner, Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law, 55 J. Legal Educ. 613 (2005)

Rosanna Kreychman & Heather Volik, Note: The Immigrant Workers Project of the Afl-CIO, 50 N.Y.L. Sch. L. Rev. 561 (2005-2006)

Samuel Krislov, Do Free Markets Create Free Societies? 33 Syracuse J. Int'l L. & Com. 155 (2005)

Stephen Lagarde, Note: Why and How the Supreme Court Should Resolve the Circuit Split over Pre-erisa Breaks in Service, 59 Tax Law. 589 (2006)

Daniel Libenson, Leasing Human Capital: Toward a New Foundation for Employment Termination Law, 27 Berkeley J. Emp. & Lab. L. 111 (2006).

Joshua Leonardi, Note: The National Employment Law Project, 50 N.Y.L. Sch. L. Rev. 579 (2005-2006)

Alex Long, "If the Train Should Jump the Track ...": Divergent Interpretations of State and Federal Employment Discriminations Statutes, 40 Ga. L. Rev. 469 (2006)

Maria Lopez, The Intersection of Immigration Law and Civil Right Law: Noncitizen Workers and the International Human Rights Paradigm, 44 Brandeis L.J. 611 (2006)

Helena Lynch, Note: Industrial Areas Foundation, 50 N.Y.L. Sch. L. Rev. 571 (2005-2006)

Ann McGinley, Harassment of Sex(y) Workers: Applying Title VII to Sexualized Industries, 18 Yale J.L. & Feminism 65 (2006)

Tibor Machan, Jobs in a Free Country, 20 Notre Dame J.L. Ethics & Pub. Pol'y 835 (2006)

John McKay, On Rivera's 'Detroit Industry': Community Beyond Knowledge, 9 Law Text Culture 125 (2005)

Sarah Marusek, Wheelchair as Semiotic: Space Governance of the American Handicapped Parking Space, 9 Law Text Culture 178 (2005)

Hillary Maki, Note: Trade Protection Vs. Trade Promotion: Are Free Trade Agreements Good for American Workers? 20 Notre Dame J.L. Ethics & Pub. Pol'y 883 (2006)

Paul Mishler, Trade Unions in the United States and the Crisis in Values: Towards a New Labor Movement, 20 Notre Dame J.L. Ethics & Pub. Pol'y 861 (2006)

Charles Morris, Minority Union Collective Bargaining: A Commentary on John True's Review Essay on the Blue Eagle at Work, and a Reply to Skeptics Regarding Members-Only Bargaining under the NLRA, 27 Berkeley J. Emp. & Lab. L. 179 (2006)

Scott Moss, Against "Academic Deference": How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine, 27 Berkeley J. Emp. & Lab. L. 1 (2006)

John Mueller, How Does Fiscal Policy Affect the American Worker? 20 Notre Dame J.L. Ethics & Pub. Pol'y 563 (2006)

Mark Nadel, Retargeting Affirmative Action: A Program to Serve Those Most Harmed by past Racism and Avoid Intractable Problems Triggered by per Se Racial Preferences, 80 St. John's L. Rev. 323 (2006)

Victor Narro, Impacting next Wave Organizing: Creative Campaign Strategies of the Los Angeles Worker Centers, 50 N.Y.L. Sch. L. Rev. 465 (2005-2006)

Rhacel Parrenas, Trafficked? Filipino Hostesses in Tokyo's Nightlife Industry, 18 Yale J.L. & Feminism 145 (2006)

Jim Pope, Next Wave Organizing and the Shift to a New Paradigm of Labor Law, 50 N.Y.L. Sch. L. Rev. 515 (2005-2006)

Dara Purvis, Comment: Overruling the Jury: Duncan v. GMC and Appellate Treatment of Hostile Work Environment Judgments, 24 Yale L. & Pol'y Rev. 485 (2006)

Peter Romer-Friedman, Note: Eliot Spitzer Meets Mother Jones: How State Attorneys General Can Enforce State Wage and Hour Laws, 39 Colum. J.L. & Soc. Probs. 495 (2006)

David Rosenbloom & Suzanne Piotrowski, Reinventing Public Administration While "De-inventing" Administrative Law: Is it Time for an "APA" for Regulating Outsourced Government Work? 33 Syracuse J. Int'l L. & Com. 175 (2005)

George Rutherglen, Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality, 74 Fordham L. Rev. 2313 (2006)

Vicki Schultz, Sex and Work, 18 Yale J.L. & Feminism 223 (2006)

Stewart Schwab & Randall Thomas, An Empirical Analysis of CEO Employment Contracts: What Do Top Executives Bargain For? 63 Wash. & Lee L. Rev. 231 (2006)

Martin Schwartz, Section 1983 Cases, 21 Touro L. Rev. 763 (2006)

Carole Scott, Money Talks: The Influence of Economic Power on the Employment Laws and Policies in the United States and France, 7 San Diego Int'l L.J. 341 (2006)

Ayelet Shachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, 81 N.Y.U. L. Rev. 148 (2006)

Carolyn Shapiro, The Limits of the Olympian Court: Common Law Judging Versus Error Correction in the Supreme Court, 63 Wash. & Lee L. Rev. 271 (2006)

Jeffrey Shooman, Comment: The Speech of Public Employees Outside the Workplace: Towards a New Framework, 36 Seton Hall L. Rev. 1341 (2006)

Reva Siegel, You've Come a Long Way, Baby: Rehnquist's New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev. 1871 (2006)

Jackie Smith, Economic Globalization and Labor Rights: Towards Global Solidarity? 20 Notre Dame J.L. Ethics & Pub. Pol'y 873 (2006)

Lauren Snyder, Note: Working America, 50 N.Y.L. Sch. L. Rev. 589 (2005-2006)

Emily Stein, Note: The Workplace Project, 50 N.Y.L. Sch. L. Rev. 607 (2005-2006)

John Paul Stevens, Learning on the Job, 74 Fordham L. Rev. 1561 (2006)

Alison Sulentic, Now I Lay Me down to Sleep: Work-related Sleep Deficits and the Theology of Leisure, 20 Notre Dame J.L. Ethics & Pub. Pol'y 749 (2006)

Symposium: Equal Protection, 74 Fordham L. Rev. 2271 (2006)

Symposium: The Jurisprudence of Justice Stevens, 74 Fordham L. Rev. 1557 2369 (2006)

Symposium: Sex for Sale, 18 Yale J.L. & Feminism 61 (2006)

Symposium: Next Wave Organizing, 50 N.Y.L. Sch. L. Rev. 303 (2005-2006)

Symposium on the American Worker, 20 Notre Dame J.L. Ethics & Pub. Pol'y 513 (2006)

Symposium: A Tribute to the Work of Kim Barry: The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. Rev. 1 (2006)

Symposium: Who Feels Their Pain? The Challenge of Noneconomic Damages in Civil Litigation, 55 Depaul L. Rev. 249 (2006)

Symposium: DaimlerChrysler v. Cuno and the Constitutionality of State Tax Incentives for Economic Development, 4 Geo. J.L. & Pub. Pol'y 15 (2006)

Symposium: The LSAT, U.S. News & World Report, and Minority Decisions, 80 St. John's L. Rev. 1 (2006)

Symposium: Fall 2005 Dispute Resolution Institute, 27 Hamline J. Pub. L. & Pol'y 217 (2006)

Syracuse Conference on a World Rule of Law: American Perspectives, 33 Syracuse J. Int'l L. & Com. 1 (2005)

Enid Trucios-Haynes, Civil Rights, Latinos, and Immigration: Cybercascades and Other Distortions in the Immigration Reform Debate, 44 Brandeis L.J. 637 (2006)

Danielle Van Jaarsveld, Overcoming Obstacles to Worker Representation: Insights from the Temporary Agency Workforce, 50 N.Y.L. Sch. L. Rev. 355 (2005-2006)

Paul Wazzan & Kenneth Sulzer, Statistical Analysis and Interpretation of Data Commonly Used in Employment Law Litigation, 8 Duq. Bus. L.J. 79 (2006)

Keron Wright, Comment: "Stuck on You": The Inability of an Ex-spouse to Waive Rights under an Erisa Pension Plan, 45 Washburn L.J. 687 (2006)

Mike Wyatt, Comment: Buy out or Get Out: Why Covenants Not to Compete in Surgeon Employment Contracts Are Truly Bad Medicine,  45 Washburn L.J. 715 (2006)

Elisabeth Yu, Note: Addressing the Economic Impact of Undocumented Immigration on the American Worker: Private Rico Litigation and Public Policy, 20 Notre Dame J.L. Ethics & Pub. Pol'y 909 (2006)


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Pennsylvania State University Dickinson School of Law,

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