LEL News-May09

The full text of many cases is now available free on-line. Where that is the case, links are provided.

The Stored Communications Act (SCA) may not be on your list of important workplace laws, but it should be. The SCA includes criminal and civil penalties for intentionally accessing, without authorization, “a facility through which an electronic communication service is provided”. It is one of a number of laws that do apply to the workplace even though they were written primarily for general applicability. In a recent case, a former employee discovered that her former employer had accessed her personal email account many times while she was employed and afterward for at least a year. Her employer “ultimately admitted to accessing Van Alstyne’s [personal] AOL account at all hours of the day, from home and internet cafes, and from locales as diverse as London, Paris, and Hong Kong. During discovery, Leonard produced copies of 258 different emails he had taken from Van Alstyne’s AOL account.” Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009). http://pacer.ca4.uscourts.gov/opinion.pdf/071892.P.pdf

The plaintiff sued both her former employer and one of its owners personally under the SCA, along with other claims, including torts and the Virginia Computer Crimes Act. The jury and judge awarded her a total of $175,000 in statutory damages, $100,000 in punitive damages, $125,700 in attorney fees, and $ 11,000 in costs against the two defendants.

After appeal, the case was remanded to the trial court for further proof that the plaintiff had suffered actual damages in order to be entitled to the statutory damages. It held that proving actual damages was not necessary for the punitive damages and attorney fees and costs. The court also directed that attorney fees and costs be reconsidered, depending on the degree of success the plaintiff had on remand. Cost conscious employers will be note that even though the court of appeals decision is potentially a partial victory for the employer, it comes with the need to incur additional litigation costs.

The National Labor Relations Act protects the right of employees to make common cause with one another in order to improve their workplace conditions. This right applies whether or not the employees are represented by a union, and it includes the right to discuss their rates of pay and other employment conditions. A recent NLRB case, which was upheld by the 1st Circuit Court of Appeals, provides a good example of how the law is commonly violated. The employer, a temporary employment agency, fired an employee for breaching a provision in the company’s employment contracts that forbade employees from discussing their pay and other terms of employment. The company claimed that it was entitled to maintain its rule in order to prevent disclosing its labor costs. It later terminated an employee who discussed his compensation and dissatisfaction concerning his working conditions with a contract employer for whom he worked.

The court upheld the NLRB’s decision that the employer had violated the NLRA both by maintaining and by enforcing the overly broad rule when it fired the employee. The court’s decision begins: “This case provides a cautionary tale for employers about the risk of maintaining and enforcing a broad confidentiality clause.” The employer was ordered to rescind the rule, notify current and former employees of the decision, reinstate the discharged employee to his former position or a substantially similar position, make him whole for any loss of earnings and other benefits suffered as a result of the unlawful action taken against him, and delete references to the unlawful discharge be deleted from its files. The details in the full decision should be helpful to employers in avoiding legal violations when drafting workplace rules. Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009)

The National Labor Relations Act (NLRA) permits unions and employers to enforce the obligation to pay dues. However, a series of court decisions have created exceptions for dues dissenters to pay only that part of dues spent on “core” representational activities. In a recent case, a dues dissenter claimed his objection was based in religious belief and that any obligation to pay dues violated Title VII’s prohibitions against religious discrimination. The union and employer applied the provisions in their agreement that allowed a religious dues objector to pay an amount equal to the regular dues to one of three designated charities. This amount was 22% higher than he would have paid to the union as a simple dues objector. The employee then sued under Title VII claiming the union had failed to reasonably accommodate his religious beliefs related to dues. Reed v. UAW, Case No.07-2505 (6th Cir. May 7, 2009). http://www.michbar.org/opinions/us_appeals/2009/050709/42619.pdf

Title VII makes it an unlawful employment practice for a labor organization to discriminate against an individual because of his religion. The employee claimed that Title VII was violated because the union failed to reasonably to accommodate a conflict between an employment requirement and his religious beliefs. The trial court held that the plaintiff had presented no evidence that he had been discharged or disciplined, evidence that is required by the statute. The court of appeals majority affirmed, holding: “Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation.” It also held that the specific accommodation did not rise to the level of an adverse employment action, because “Other than the accommodation itself, the reasonableness of which he challenges, Reed cannot point to any action by UAW that has adversely affected his employment. And whatever “discharge or discipline” or “adverse employment action” may mean in other contexts, a plaintiff does not carry his burden merely by showing that he has lost some amount of pay as a result of a proffered accommodation.” The dissent argued that all the plaintiff had to do was to show an adverse employment action in order to establish a prima facie religious accommodation claim and argued that the accommodation was not reasonable.

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Michal Alberstein, ADR and Collective Trauma: Constructing the Forum for the Traumatic Fuss, 10 Cardozo J. Conflict Resol. 11 (2008)

Keith Aoki, et alia, (In)visible Cities: Three Local Government Models and Immigration Regulation, 10 Or. Rev. Int’l L. 453 (2008)

Richard Bales & Jamie Ireland, Federal Question Jurisdiction and the Federal Arbitration Act, 80 U. Colo. L. Rev. 89 (2009)

Mark Bandsuch, The NBA Dress Code and Other Fashion Faux Pas under Title VII, 16 Vill. Sports & Ent. L.J. 1 (2009)

John Barkai, What’s a Cross-Cultural Mediator to Do? A Low-Context Solution for a High-Context Problem, 10 Cardozo J. Conflict Resol. 43 (2008)

Susan Carle & Michelle Lapointe, Short Notes on Teaching about the Micro-Politics of Class, with Examples from Torts and Employment Law Casebooks, 56 Buff. L. Rev. 1129 (2008)

Kenneth Casebeer, Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami, 56 Buff. L. Rev. 1059 (2008)

Howard Chang, Guest Workers and Justice in a Second-Best World, 34 U. Dayton L. Rev. 3 (2008)

Simon Chesterman, ‘We Can’t Spy . . . If We Can’t Buy!’– The Privatization of Intelligence and the Limits of Outsourcing ‘Inherently Governmental Functions’, 19 Eur. J. Int’l L. 1055 (2008)

Vincent Chiappetta, Employee Blogs and Trade Secrets: Legal Response to Technological Change, 11 Nexus 31 (2006)

Allison Cimpl-Wiemer, Comment: Ledbetter v. Goodyear: Letting the Air out of the Continuing Violations Doctrine? 92 Marq. L. Rev. 355 (2008)

Frederick Claybrook, Please Check Your Crystal Ball at the Courtroom Door – A Call for the Judiciary in Bid Protest Actions to Let Agencies Do Their Job, 38 Pub. Cont. L.J. 375 (2009)

Katherine Crytzer, Comment: You’re Fired! Bishop v. Wood: When Does a Letter in a Former Public Employee’s Personal File Deny a Due Process Liberty Right? 16 Geo. Mason L. Rev. 447 (2009)

Carlo D’angelo, Overseas Legal Outsourcing and the American Legal Profession: Friend or "Flattener"? 14 Tex. Wesleyan L. Rev. 167 (2008)

Omer Dekel, Modification of a Government Contract Awarded Following a Competitive Procedure, 38 Pub. Cont. L.J. 401 (2009)

James Durkee, The Proper Obligation and Use of Appropriated Funds in Interagency Contracting under Non-Economy Act Authorities: Have We Got it Right Yet? 38 Pub. Cont. L.J. 317 (2009)

Alice Edwards, Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/Migration and Labor, 36 Denv. J. Intl’l L. & Pol’y 9 (2007)

John Figura, Comment: You’re in the Army Now: Borrowed Servants, Dual Servants, and Torts Committed by Contractors’ Employees in the Theaters of U.s. Military Operations. 58 Emory L.J. 513 (2008)

Jessica Fink, Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias in Employer-Defendants, 38 N.m. L. Rev. 333 (2008)

Bindu George, Note: Ledbetter v. Goodyear: A Court out of Touch with the Realities of the American Workplace, 18 Temp. Pol. & Civ. Rts. L. Rev. 253 (2008)

Alan Goldstein & Shoshanah Epstein, Personality Testing in Employment: Useful Business Tool or Civil Rights Violation? 24 Lab. Law. 243 (2008)

William Herbert, Workplace Electronic Privacy Protections Abroad: The Whole Wide World Is Watching, 19 U. Fla. J.L. & Pub. Pol’y 379 (2008)

Mariana Hernandez Crespo, A Systemic Perspective of ADR in Latin America: Enhancing the Shadow of the Law Through Citizen Participation, 10 Cardozo J. Conflict Resol. 91 (2008)

Ernesto Hernandez-Lopez, Global Migrations and Imagined Citizenship: Examples from Slavery, Chinese Exclusion, and When Questioning Birthright Citizenship, 14 Tex. Wesleyan L. Rev. 255 (2008)

Wendy Hess & Jonathan Grode, Representing Corporate Clients: A New Union Between Labor, Immigration, and Criminal Counsel, 24 Lab. Law. 223 (2008)

Natalie Hrubos, Note: Agreements to Arbitrate Employment Discrimination Claims: Pyett Illustrates Need to Re-Forest the Legal Landscape,18 Temp. Pol. & Civ. Rts. L. Rev. 281 (2008)

Tonja Jacobi, The Role of Politics and Economics in Explaining Variation in Litigation Rates in the U.S. States, 38 J. Legal Stud. 205 (2009)

Lucille Jewel, Bourdieu and American Legal Education: How Law Schools Reproduce Social Stratification and Class Hierarchy, 56 Buff. L. Rev. 1155 (2008)

Allen Kamp, No Compensation for Slave Traders: Some Implications, 14 Tex. Wesleyan L. Rev. 289 (2008)

Ralph Kasarda & Robert Luther, Why Courts must Subject Municipalities to Constitutional Tort Liability under Section 1983 When Unconstitutional Race- and Sex-Based Preference Statutes Deprive an Otherwise Lowest Qualified Bidder of a Public Contract, 19 Geo. Mason U. Civ. Rts. L.J. 371 (2009)

Nancy Knauer, LGBT Elder Law: Toward Equality in Aging, 32 Harv. J.L. & Gender 1 (2009)

David Larson & Paula Mickelson, Technology Mediated Dispute Resolution Can Improve the Registry of Interpreters for the Deaf Ethical Practices System: The Deaf Community Is Well Prepared and Can Lead by Example, 10 Cardozo J. Conflict Resol. 131 (2008)

Julie Lappas, Note: Changing Horses in the Middle of the Stream: The Medicare Part D Bidding Process and its Effect on the Stability of Dual Eligible Beneficiaries, 38 Pub. Cont. L.J. 487 (2009)

Ashlie Lawton, Comment: Deferential Review for a Nonfiduciary’s Decision?: How Geddes v. United Staffing Alliance Split the Circuits, ERISA, and a Plan Participant’s Right to a Discretionary Review, 16 Geo. Mason L. Rev. 471 (2009)

Wendi Lazar, Employment Agreements and Cross Border Employment – Confidentiality, Trade Secret, and Other Restrictive Covenants in a Global Economy, 24 Lab. Law. 195 (2008)

Robert Landry & Benjamin Hardy, Mandatory Pre-employment Arbitration Agreements: The Scattering, Smothering and Covering of Employee Rights, 19 U. Fla. J.L. & Pub. Pol’y 479 (2008)

Richard Lempert, The Significance of Statistical Significance, A Review of Stephen T. Ziliak & Deidre N. McCloskey, The Cult of Statistical Significance: How the Standard Error Costs Us Jobs, Justice, and Lives, 34 Law & Soc. Inquiry 225 (2009)

Christopher Lenhardt, Note: Michigan’s Workplace Enforcement Law: Encroachment on Traditional Federal Power or Effective Socioeconomic Policy? 86 U. Det. Mercy L. Rev. 245 (2009)

Michael Leroy, Do Courts Create Moral Hazard?: When Judges Nullify Employer Liability in Arbitrations, 93 Minn. L. Rev. 998 (2009)

Jayce Lesniewski, Case Note: Contracts: The War Against Words: When Contract Interpretation Impedes Judicial Goals, 35 Wm. Mitchell L. Rev. 627 (2009)

David Lowe, Enforcing the Employment Rights of American Workers Abroad, 24 Lab. Law. 213 (2008)

Daniel Magraw & Lauren Baker, Globalization, Communities and Human Rights: Community-Based Property Rights and Prior Informed Consent, 35 Denv. J. Intl’l L. & Pol’y 413 (2007)

Mary Theresa Metzler, We Never Talk Anymore: Evaluating Confidentiality Rules and No-Fraternization Policies – Exactly Who Are the Carthusian Monks? Cintas Corp. v. NLRB and Guardsmark, LLC v. NLRB, 24 Lab. Law. 175 (2008)

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Ved Nanda, The Protection of Human Rights under International Law: Will the U.N. Human Rights Council and the Emerging New Norm "Responsibility to Protect" Make a Difference? 35 Denv. J. Intl’l L. & Pol’y 353 (2007)

Jennifer Nou, Note: Privatizing Democracy: Promoting Election Integrity Through Procurement Contracts, 118 Yale L.J. 744 (2009)

Joseph Oluwole, On the Road to Garcetti: ‘Unpick’erring Pickering and its Progeny, 36 Cap. U. L. Rev. 967 (2008)

Joseph Oluwole, Public Employment-Free Speech Jurisprudence: A New Constitutional Test for Disciplined Whistleblowers, 19 U. Fla. J.L. & Pub. Pol’y 421 (2008)

Carlo Osi, Understanding Indigenous Dispute Resolution Processes and Western Alternative Dispute Resolution: Cultivating Culturally Appropriate Methods in Lieu of Litigation, 10 Cardozo J. Conflict Resol. 163 (2008)

Barbara Palmer & Dennis Simon, Breaking the Political Glass Ceiling: Incumbency, Redistricting, and the Success of Women Candidates, 31 T. Jefferson L. Rev. 29 (2008)

Marisa Anne Pagnatarro, Geltting under Your Skin – Literally: RRID in the Employment Context, 2008 U. Ill. J.L. Tech. & Pol’y 237

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Amy Pritchard, "We Are Your Neighbors": How Communities Can Best Address a Growing Day-Labor Workforce, 7 Seattle J. for Soc. Just. 371 (2008)

Rebecca Pereira, Note: Withholding Taxes: Too Taxing on Government Procurement, 38 Pub. Cont. L.J. 451 (2009)

James Pope, Class Conflicts of Law I: Unilateral Worker Lawmaking Versus Unilateral Employer Lawmaking in the U.S. Workplace, 56 Buff. L. Rev. 1095 (2008)

Sean Ratliff, Comment: Independent Investigations: An Inequitable out for Employers in Cat’s Paw Cases, 80 U. Colo. L. Rev. 255 (2009)

Regina Rauxloh, A Call for the End of Impunity for Multinational Corporations, 14 Tex. Wesleyan L. Rev. 297 (2008)

Jillian Rennie, Comment: Constructive Notice under the Family and Medical Leave Act, 118 Yale L.J. 795 (2009)

Chistopher Robbins, Note: The Siren’s Call of Substantive Predatory Lending Reform: Why Procedural Reform Modeled on Worker’s Compensation Will Improve and Stabilize the Mortgage Industry, 35 Ohio N.U. L. Rev. 295 (2009)

Kaleena Scamman, Note: ADR in the Music Industry: Tailoring Dispute Resolution to the Different Stages of the Artist-Label Relationship, 10 Cardozo J. Conflict Resol. 269 (2008)

Elizabeth Sepper, Confronting the "Sacred and Unchangeable": The Obligation to Modify Cultural Patterns under the Women’s Discrimination Treaty, 30 U. Pa. J. Int’l L. 585 (2008)

Charles Shanor, Employment Cases from the 2007-2008 Supreme Court Term, 24 Lab. Law. 147 (2008)

Lisa Smith-Butler, Workplace Privacy: We’ll Be Watching You, 35 Ohio N.U. L. Rev. 53 (2009)

Filip Spagnoli, The Globalization of Human Rights Law: Why Do Human Rights Need International Law? 14 Tex. Wesleyan L. Rev. 317 (2008)

Michael Stanek, Note: Gotta Have Faith: Why the New Contractor Ethics Rules Miss the Mark, 38 Pub. Cont. L.J. 427 (2009)

Mark Stephens, Comment: Losing Lift and Creating Drag! The Effect of the National Mediation Board Execution and the Railway Labor Act Court Decisions on the Collective Bargaining Process in the Airline Industry: A Union Perspective, 15 Tex. Wesleyan L. Rev. 141 (2008)

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Symposium: The School Desegregation Cases and the Uncertain Future of Racial Equality, 69 Ohio St. L.J. 1089 (2008)

Symposium: Thinking Through Law’s Questions of Class, Economics, and Equality, 56 Buff. L. Rev. 859 (2008)

Symposium: Private Military Contractors and International Law, 19 Eur. J. Int’l L. 961 (2008)

Symposium: Constructing a Story of Law and Class: Cases, Statutes, and Foundational Readings, 56 Buff. L. Rev. 1035 (2008)

Symposium. Multiscalar Civil Society?: Legal Pluralism and Inequality, 10 Or. Rev. Int’l L. 327 (2008)

Symposium: The Role of Gender in Political Decision Making, 31 T. Jefferson L. Rev. 25 (2008)

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May 2009 Labor and Employment Law News

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