The Firm

(March 21, 2008) Firm partner Robert A. Sparer persuaded a federal district court judge to dismiss a former employee's attempt to set aside an arbitration award. In Delgado v. A. Korenegay Sr. Housing, a former employee's discharge was upheld after the full union contract grievance process was followed. The plaintiff brought in private counsel to seek to vacate the award, arguing that the arbitrator failed to grant an adjournment and did not consider certain evidence. On a pre-answer motion to dismiss, the court found that the plaintiff did not have standing and, even if he did, his amended complaint did not sufficiently allege any misconduct by the arbitrator. The court also found that the award had more than a colorable basis. Thus, the court dismissed the amended complaint.

WITH CLIFTON BUDD & DeMARIA'S ADVICE, TWO EMPLOYERS REBUFFED UNION ORGANIZING EFFORTS

(March 11, 2008) Recently, Clifton Budd & DeMaria advised two valued clients regarding active union organizing campaigns. Both clients defeated unionization of their workforces. In the first case, a transporter of pupils for Nassau County Long Island school districts accomplished a victory at an NLRB-conducted secret ballot election. In the second case, a large Northeast distributor of wholesale food products faced an organizing attempt by the Boston area's largest Teamster Local at its Massachusetts location. After a spirited election campaign, the petition was withdrawn a week before the election. Had the Employee Free Choice Act (EFCA) been in effect, the employers would likely have been unionized (without an election) on the basis of a majority of cards obtained by the unions when they filed their requests for elections. These two cases underscore the need for all employers to prepare for the possibility that the EFCA will be passed and signed into law early next year by taking the time, now, to implement proactive measures and employment policies that will cause employees to have no interest in signing cards or pursuing union representation in the first place.

ARTHUR J. ROBB PROMOTED TO COUNSEL AT CLIFTON BUDD & DEMARIA, LLP ON JANUARY 1, 2008

(January 1, 2008) The Firm is very pleased to announce that Arthur J. Robb has been promoted to the position of Counsel at the Firm on January 1, 2008. Mr. Robb will continue to represent management in all aspects of employment and labor law including litigation, day-to-day advice and counsel, human relations seminars, NLRB and other administrative matters and employment and severance agreements. Mr. Robb had been an associate with the Firm since 2000.

ALFRED T. DeMARIA NAMED ONE OF NATION'S TOP LABOR LAWYERS

(December 10, 2007). Firm partner Alfred T. DeMaria was recently named one of the Top 100 Labor Lawyers in the United States for 2007 by the Labor Relations Institute. Mr. DeMaria was selected, from among over 8,600 labor attorneys, based on his successful work for employers involved in union representation proceedings.

GEORGE F. BRENLLA AND RICHARD K. MUSER OBTAIN DEFENSE VERDICT IN OVERTIME LAWSUIT FOR MULTINATIONAL CLIENT

(November 30, 2007). Firm partners George F. Brenlla and Richard K. Muser, convinced a federal jury that plaintiff was not entitled to overtime pay. In the case, plaintiff claimed that he was entitled to overtime under the Fair Labor Standards Act. Mssrs. Muser and Brenlla established that the plaintiff was exempt under the FLSA as an outside salesman. The jury found that the defendant established that plaintiff met the requirements for the exemption.

FEDERAL APPEALS COURT REJECTS FORMER EMPLOYEE'S ATTEMPT TO VACATE AN ARBITRATION AWARD

(October 26, 2007) Firm partner Robert A. Sparer and Firm associates Jennifer M. Marrinan and Matthew A. Siebel, in Vargas v. SEIU Local 32BJ and 2727 Realty LLC, argued successfully that a dissatisfied former employee did not have standing to challenge the arbitration award issued pursuant to a union contract. The employee had asserted that the union breached its duty of fair representation in connection with his employment, its termination and the arbitration. The federal appeals court found no evidence of such a breach.

GEORGE F. BRENLLA COMMENTS ON CURRENT EMPLOYMENT LAW ISSUES IN THE NEW YORK LAW JOURNAL AND TRADE MAGAZINE

(October 8, 2007) Firm partner, George F. Brenlla, was interviewed by the New York Law Journal about the State Division of Human Rights recent shift towards finding probable cause in civil rights cases at the agency. Mr. Brenlla pointed out that the Division is issuing probable cause determinations more frequently and in weak cases. Mr. Brenlla voiced his concern about this change. The increase in probable cause findings is a harbinger of problems for employers in New York State. Mr. Brenlla's comments were published in the New York Law Journal's October 3 edition.

Mr. Brenlla was also recently interviewed in Textile Rental, a trade magazine, discussing various legal implications of employee blogs. In his interview, Mr. Brenlla shared his views regarding employee blogs which may reveal information about the employer. Employees may not defame or disparage their employer or reveal trade secrets in their blogs. While companies and organizations may take disciplinary action, they must careful to avoid violations of various federal and state laws that allow employees to conduct legal activities or allow employees to complain of discriminatory treat or other terms and conditions of employment.

CLIFTON BUDD & DeMARIA ASSISTS CLIENTS TO VICTORY IN TWO MAJOR ORGANIZING DRIVES

(October 2, 2007) In two recent cases, the firm was involved in successfully repelling attempts by two unions, which represent members in vastly different industries, to organize our clients.

The first involved an attempt by the Food Workers Union to organize cleaning and maintenance employees at The New Fulton Fish Market, the newly established seafood terminal in Bronx, New York. The firm advised on a hard-fought campaign against the union, which was a particularly difficult and strident effort since the Food Workers were already established as the predominant union at the Hunts Point Terminal Market.

The second attempt involved the well-known United Federation of Teachers. The UFT attempted to organize a group of teachers at a private school in Staten Island. To counteract the appeal that the union had with the teachers/voters involved in the campaign, supervisory training, videotape presentations on the adverse effects of unions and other campaign mechanisms were used to defeat the UFT campaign.

COURT GRANTS SUMMARY JUDGMENT AGAINST EMPLOYEE ACCUSED OF THEFT OF COMPANY TIME

(September 24, 2007) Firm associate, Sheryl Sorensen, successfully defended against a part-time chart analyst's claims of hostile work environment, national origin and race discrimination, and obtained a dismissal of all claims on summary judgment. In DaCosta v. North Shore University Hospital, plaintiff was terminated after the Hospital concluded that she had violated hospital policy with regards to theft of time. The court granted summary judgment, finding that plaintiff had failed to demonstrate that she had a prima facie case for discrimination against her former employer on any theory she proposed.

ALFRED T. DeMARIA CONDUCTS EMPLOYMENT LAW SEMINAR

(September 10, 2007) Firm partner, Alfred T. DeMaria, conducted a seminar at the Italy America Chamber of Commerce. The subject of the two-hour briefing was Employment and Immigration Law issues in the 21st Century. It featured a number of topics, including general employment law, hiring and firing, avoidance of discrimination lawsuits, related current areas of concern and an update on government regulations concerning Social Security Administration "no-match letters."

THIRD DEPARTMENT UPHOLDS UNEMPLOYMENT INSURANCE APPEAL BOARD'S DECISION

(September 4, 2007) Firm partner, George F. Brenlla, and Firm associate, Stefanie R. Munsky, recently persuaded the Supreme Court of the State of New York, Appellate Division, Third Judicial Department that a former employee of a corporation was disqualified from receiving unemployment insurance benefits. The Court affirmed the Unemployment Insurance Appeal Board's determination that resigning from a position to relocate to a warmer climate to care for an ailing spouse does not constitute good cause for leaving employment absent proof that the decision was motivated by a compelling medical necessity.

COURT TAKES CASE FROM JURY AND DISMISSES PLAINTIFF'S DISCRIMINATION AND BREACH OF CONTRACT CLAIMS

(July 30, 2007) Firm partner, George F. Brenlla, and Firm associate, Diane M. Pietraszewski, persuaded the United States District Court for the Southern District of New York to dismiss all of Plaintiff's discrimination and breach of contract claims without sending the case to the jury. After successfully moving to dismiss Plaintiff's breach of contract claims at the beginning of the trial, Mr. Brenlla and Ms. Pietraszewski convinced the Court mid-trial that the Plaintiff failed to establish any wrongdoing by one of the Firm's not-for-profit clients. The Court dismissed the complaint in its entirety.

FEDERAL DISTRICT COURT RETAINS JURISDICTION AND DISMISSES FORMER EMPLOYEE'S CLAIMS THAT CALLED FOR INTERPRETATION OF UNION CONTRACT

(February 22, 2007) Firm partner Robert Sparer persuaded a federal District Court Judge that a former union building worker’s state tort claim litigation was subject to federal jurisdiction. The court also granted Mr. Sparer’s motion to dismiss the complaint, which asserted claims of intentional infliction of emotional, distress; second, defamation; third, tortious interference with contractual relations; and fourth tortious interference with prospective economic advantage, based on the collective bargaining agreement’s mandatory grievance and arbitration provisions.

SEVENTH CIRCUIT COURT OF APPEALS AFFIRMS DISMISSAL OF RACE DISCRIMINATION CLAIMS AND DENIAL OF PLAINTIFFS' MOTION TO REPLEAD

(January 26, 2007) Firm partners, Robert A. Sparer and Scott M. Wich and Firm associate, Jennifer M. Marrinan, successfully defended the dismissal of three plaintiffs' race discrimination claims. The plaintiffs claimed that their former employer discharged them because of their races in connection with the closing of the program in which they work. The federal District Court for the Northern District of Illinois granted summary judgment dismissing the complaint. In a follow-on motion by plaintiffs, the Firm persuaded the District Court not to permit plaintiffs to amend the complaint to state a breach of contract claim. Mr. Sparer argued on the plaintiffs' appeal that the lower court correctly dismissed the complaint and refused to allow plaintiffs to file a new complaint, despite the liberal rules relating to amending complaints..

GEORGE F. BRENLLA LENDS HIS INSIGHT INTO THE UNIONIZATION OF MASSACHUSETTS HEALTHCARE FACILITIES

(December 13, 2006) Firm Partner George F. Brenlla recently shared his experience and insights on unionization in the healthcare field and the recent spread of unionization in the Massachusetts healthcare workforce. In the Winter 2007 issue of the Massachusetts Medical Law Report, Mr. Brenlla discusses how unions attempt to organize healthcare institutions and the reasons why some facilities are more susceptible to unionization than others. Additionally, Mr. Brenlla discusses the legal landmines that management must navigate around during a union campaign.

FEDERAL COURT REJECTS FORMER EMPLOYEE’S ATTEMPT TO VACATE AN ARBITRATION AWARD

(October 23, 2006) Firm partner Robert A. Sparer and Firm associate Jennifer M. Marrinan, in Vargas v. SEIU Local 32BJ and 2727 Realty LLC, persuaded a federal district court judge that the former superintendent of a residential building did not have standing to challenge the arbitration award that sustained his discharge, despite the fact that the union had permitted him and his private counsel to prosecute the grievance. In the former employee’s subsequent application to the Second Circuit, Mr. Sparer successfully argued that the appellate court should not stay the state Housing Court proceedings to evict the plaintiff.

SCOTT M. WICH PUBLISHED IN TWO HUMAN RESOURCES PERIODICALS

(October 18, 2006) An article by Firm partner Scott M. Wich was recently published in HR Magazine, a monthly magazine of the Society for Human Resources Management (SHRM). In "Court Report: Stereotypes Distinguished from Orientation," Mr. Wich reviewed a recent U.S. Circuit Court of Appeals decision highlighting the differences between harassment based on gender-related stereotypes versus harassment based on sexual orientation. Mr. Wich also has been published in the September/October 2006 Chapter News of the SHRM Central Illinois Chapter. In "Irrational Decisions Weren't Prohibited by Title VII," Mr. Wich addressed a US Circuit Court of Appeals decision on the decisionmaking authority of employers.

JURY REJECTS RETALIATION CLAIM OF EXECUTIVE

(July 7, 2006) Firm partners Robert A. Sparer and Daniel C. Moreland and Firm associate Sheryl Sorensen obtained a defense verdict from a Brooklyn jury in the Eastern District of New York. The plaintiff, a former executive, was discharged for various acts of misconduct. He contended that the discharge was due to his purported complaints of race discrimination against lower-level employees. After a three-day trial, the jury returned a verdict in favor of the original employer, the three companies that plaintiff contended were successors to the employer and an individual.

COURT PERSUADED THAT MISUSE OF RESTAURANT'S TRADEMARK LIKELY TO CONSTITUTE VIOLATION OF LANHAM ACT

(July 6, 2006) Firm partner, Thomas W. Budd, and Firm associate, Arthur J. Robb, successfully persuaded the United States District Court for the Southern District of New York that one of the Firm's restaurant clients was likely to succeed on its argument that Restaurant Opportunity Center of New York ("ROC-NY"), violated the Lanham Act by using the restaurant's trademark on leaflets being distributed to the public to persuade the public that the restaurant was violating federal and state labor laws. The court concluded that the front page of the leaflets, which included the restaurant's trademark and the words "SPECIAL FOR YOU," was intended to confuse the public by indicating that the restaurant was the source of the message contained in the leaflet and, therefore, the use of such trademark was a trademark infringement.

ROBERT J. TRACY TO PARTICIPATE IN TRANSATLANTIC PERSPECTIVES ON ADR CONFERENCE IN LONDON, ENGLAND, ADDRESSING ISSUES INVOLVED IN ARBITRATION AND MEDIATION OF DISPUTES INVOLVING PERSONS WITH DISABILITIES

(June 28, 2006) Firm partner Robert J. Tracy will serve as a panelist at an international conference on Alternative Dispute Resolution in London, England on July 27 and 28, 2006. The conference, entitled “Transatlantic Perspectives on ADR” is primarily co-sponsored by St. John’s University School of Law and the Chartered Institute of Arbitrators, London. Mr. Tracy will be one of the speakers on the labor and employment panel and will be addressing issues involved in the arbitration and mediation of disputes involving persons with disabilities. Mr. Tracy’s presentation will cover recent decisions on the enforceability and scope of agreements to arbitrate claims under the Americans with Disabilities Act (“ADA”), the legal standards governing the arbitration of ADA claims, as well as recent guidance by the EEOC and DOJ on the rights and obligations of mediators, arbitrators and litigants in the mediation or arbitration of disputes involving persons with disabilities.

CARLYLE M. DUNAWAY AND SCOTT M. WICH PRESENT CLINIC TO HEALTH CARE FOOD ADMINISTRATORS' ASSOCIATION

(March 21, 2006) Firm partners Carlyle M. Dunaway, Jr. and Scott M. Wich recently presented a Labor Relations Clinic on suggested approaches to labor-management relations to the Greater New York Chapter of the Health Care Food Administrators' Association. Topics covered during the presentation and question-and-answer session included consistency in management decisionmaking, handling of grievances and preparation for arbitration. Addressing both the legal and practical aspects of labor relations management, the Clinic focused on providing strategies in preventing as well as successfully defending against union grievances.

SCOTT M. WICH BECOMES A PARTNER AT CLIFTON BUDD & DEMARIA, LLP ON JANUARY 1, 2006

(January 1, 2006) The Firm is very pleased to announce that Scott M. Wich has become a partner of the Firm on January 1, 2006. Mr. Wich will continue to represent management in all aspects of employment and labor law including litigation, day-to-day advice and counsel, human relations seminars, NLRB and other administrative matters and employment and severance agreements. Mr. Wich has been an associate with the Firm since 1996.

STATE COURT REJECTS PUBLIC EMPLOYEE'S EFFORTS TO STAY DISCIPLINARY PROCEEDINGS

(December 19, 2005) Firm associate Arthur J. Robb was successful in obtaining the dismissal of a public sector employee's efforts to prevent discharge proceedings under the Civil Service Law. In Clarke v. Nassau Health Care Corporation, the employer served charges of misconduct and incompetence, and commenced proceedings under Section 75 of the Civil Service Law to prove those charges. The employee filed a petition in Nassau County Supreme Court, seeking a determination that the proceedings were improper. The court disagreed, stating that the rights of the parties would be adjudicated at the Section 75 hearing, and that the employee's proper avenue of recourse would be to seek review of a final determination from the Section 75 Hearing Officer. The court dismissed the employee's petition in its entirety.

RETALIATION AND RACE AND GENDER DISCRIMINATION CLAIMS REJECTED BY FEDERAL COURT ON A MOTION FOR SUMMARY JUDGMENT

(December 6, 2005) Firm partner Carlyle M. Dunaway, Jr. and Firm associate Arthur J. Robb successfully obtained a summary judgment dismissal of a hospital administrator's federal court complaint asserting claims of race and gender discrimination and retaliation in the United States District Court for the Southern District of New York. In Timothy v. Our Lady of Mercy Medical Center, the plaintiff claimed that, over a course of years, she suffered several adverse changes to her job function and was passed over for other jobs. She further claimed that she suffered retaliatory acts after complaining of the perceived discrimination. The Court rejected these claims in their entirety. The employer presented undisputed evidence that each of the challenged actions was part of a turnaround plan, implemented to improve the employer's overall financial condition. The employer further showed that - in contrast to plaintiff, who was retained without any reduction in salary - numerous other administrators and staff were let go in conjunction with the turnaround. The court granted summary judgment, finding the plaintiff failed to show any evidence of illegal discrimination or retaliation. The plaintiff has filed a notice of appeal.

The Law

FEDERAL ARBITRATION ACT SUPERSEDES STATE LAW, U.S. SUPREME COURT RULES

(February 25, 2008) The U.S. Supreme Court recently ruled that the Federal Arbitration Act ("FAA") supersedes a state law that calls for the submission of certain disputes to an administrative review prior to reaching arbitration. In Preston v. Ferrer, an attorney sought fees from a television personality, Alex E. Ferrer ("Judge Alex"), pursuant to a contract between them. The contract called for all disputes to be resolved in arbitration. Ferrer defended against Preston's demand for arbitration by relying on the California Talent Agencies Act ("TAA"), which placed jurisdiction over such disputes in the state Labor Commissioner. The Supreme Court reversed the application of the TAA by the California courts in this case, concluding that "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA."

NEW YORK COURT OF APPEALS REJECTS EXCEPTION TO AT-WILL EMPLOYMENT DOCTRINE

(February 25, 2008) The New York Court of Appeals recently held in Smalley v. The Dreyfus Corp. that five at-will employees could not state a cause of action for fraudulent inducement to enter into and remain in the employment of their former employer without demonstrating injuries distinct from termination. In doing so, the court again refused to recognize exceptions to New York's employment at-will doctrine. The plaintiffs in this case alleged that they relied on their employer's assurances that a rumored merger would not take place in accepting their employment. Ultimately, the merger occurred and all five employees were terminated as a result. In dismissing plaintiffs' claims, the court noted that because "the length of employment is not a material term of at-will employment, a party cannot be injured merely by the termination of the contract - neither party can be said to have reasonably relied upon the other's promise not to terminate the contract." Since the plaintiffs could not establish any injuries separate from their termination, the court held that they could not recover "for what is at bottom an alleged breach of contract in the guise of a tort."

COURT HOLDS INVOLUNTARY CHARGES MAY CONSTITUTE GRATUITIES TO BE PAID TO EMPLOYEES

(February 25, 2008) In Samiento v. World Yacht, Inc., the New York Court of Appeals held that certain mandatory service charges/gratuities billed to customers may constitute gratuities which may have to be paid to employees. New York labor law forbids an employer from retaining any part of a gratuity or any charge purported to be a gratuity. Here, the employer, a provider of dining cruises, imposed mandatory charges upon its customers. Plaintiffs were former and current restaurant servers who alleged that the employer improperly failed to remit the proceeds of these charges. Of particular note, plaintiffs alleged that their employer informed patrons that the service charges/gratuities were given to the employees. The Court of Appeals reversed dismissal of plaintiffs' claims and held that the mandatory charge may be considered a "charge purported to be a gratuity."

NLRB ISSUES DECISION CLARIFYING E-MAIL USAGE BY EMPLOYEES

(January 9, 2008) The National Labor Relations Board issued its long-awaited ruling on the use of employer e-mail systems for union-related matters in The Guard Publishing Company, d/b/a The Register-Guard. The Board concluded, by a 3-2 majority, that employers may regulate the use of their e-mail systems to prohibit non-business solicitations. Thus, an employee was permissibly disciplined for sending two e-mails soliciting support for a union. In addition, the Board overruled earlier decisions relating to the non-discriminatory enforcement of a policy. The Board found that the employer had allowed employees to use the e-mail system for personal e-mails despite the policy, but did not permit its use for group or organizational purposes. Based on court decisions, the Board concluded that the appropriate analysis of whether the enforcement of the policy was discriminatory was based on similar types of communications. Thus, although the employer permitted personal e-mails, it prohibited group or organizational use, which is the appropriate comparison with the e-mails seeking support of the union. The employee at issue sent a third e-mail about a union activity but that did not solicit support for the union. Because this third e-mail was personal and not group or organizational in nature and the employee was disciplined because the subject matter was protected under the National Labor Relations Act, the discipline was found to be unlawful.

EMPLOYER PERMISSIBLY REFUSED FUND DEMAND FOR INCREASED CONTRIBUTIONS

(January 9, 2008) The National Labor Relations Board in Hempstead Lincoln Mercury Motors Corp. agreed with an administrative law judge that an employer that refused to pay or set aside money to pay the contributions to the union pension fund did not engaged in unlawful activity. The Fund demanded increased contributions because it assertedly faced a future funding deficiency and, when the employer did not make the increased contributions, declined to accept payments made by the employer. Because the employer complied with its contractual obligations and did not make any change in its terms and conditions of employment, it had no duty to bargain with the Union about its refusal. Further, by notifying the Union that it could not afford the requested increase and asking for concessions, the employer had attempted to bargain with the Union about the Fund's demand for increased payments.

NLRB CLARIFIES RIGHT OF EMPLOYERS TO SUE UNIONS

(December 10, 2007) In BE&K Const. Co., the National Labor Relations Board held that an employer does not violate the National Labor Relations Act when it brings an unsuccessful lawsuit against a union so long as the lawsuit is reasonably based-even if the employer does so with a retaliatory motive. The company was a general contractor hired to modernize a California steel mill. The union tried to delay the project by lobbying politicians, hand billing, picketing and encouraging subcontractors' employees to strike, among other efforts. The company responded by suing the union on various theories. The company's lawsuit was dismissed, although a federal appeals court found that the company's lawsuit was not frivolous. The NLRB found that the company's lawsuit was filed in retaliation for the Union's protected activity. Nevertheless, the Board dismissed the unfair labor practice charges against the company. In so doing, the Board reasoned that the rights protected under the NLRA must be balanced against the First Amendment right to petition the government for the redress of grievances. The Board concluded that so long as there is a reasonable basis for the lawsuit at the time it is filed, an employer must be permitted to file it without fear of liability for an unfair labor practice.

THIRD CIRCUIT FINDS WORKERS' TIME SPENT DONNING AND DOFFING AS WORK EVEN IF NOT LABORIOUS

(November 26, 2007) The Third Circuit Court of Appeals revived a donning and doffing case in Melania Felix de Asencio, et al. v. Tyson Foods, Inc. The case involved a group of former and current chicken processing plant workers who alleged that their employer failed to pay them for time spent donning and doffing, as well as washing, their work gear as required by the Fair Labor Standards Act ("FLSA"). The employer required its workers to put on and take off safety and sanitary clothing, and engage in washing activities, six times a day, before and after their paid shifts and two daily meal breaks. At the trial, the jury was instructed on the definition of "work" under the FLSA, in which they had to consider whether the activities performed by the workers involved physical or mental exertion. In overturning the jury instructions, the Third Circuit held they were erroneous as a matter of law because they wrongfully directed the jury to consider whether the workers had demonstrated some sufficiently laborious degree of exertion. The Third Circuit held that the workers' donning and doffing time was compensable as "work" as a matter of law because the activity was required by the employer and pursued for the benefit of the employer.

INFORMAL PAY COMPLAINT TO NLRB CONSTITUTES PROTECTED ACTIVITY UNDER THE FLSA

(November 26, 2007) A federal district court, in Hernandez v. City Wide Insulation of Madison, Inc., recently echoed the opinion of a majority of federal courts in holding that informal complaints about FLSA violations fall under the FLSA's prohibition on retaliation. The complaints at issue in this case were made to the National Labor Relations Board during an investigation of a union's charges against the company. In connection with the investigation, the plaintiff submitted an affidavit discussing the number of hours worked per week as well as his complaints to the company about not receiving pay for his overtime. In denying the employer's motion for summary judgment, the court held that even though the NLRB investigation was not an FLSA proceeding, the plaintiff's statement constituted an FLSA complaint to the government. Therefore, he was able to proceed on his claims of retaliation for complaining about FLSA violations. The court noted, however, that a "general complaint about low wages or unfair wages" is insufficient to establish protected activity. Rather, "a complaint must relate to the FLSA, if not by name then by reference to something regulated by the FLSA - minimum wage, overtime pay, equal pay between the sexes or child labor." Thus, although courts are increasingly protecting informal complaints regarding pay, they continue to require that the complaints specifically relate to FLSA violations.

NLRB REAFFIRMS USE OF CLEAR AND UNMISTAKABLE WAIVER STANDARD

(October 24, 2007) In a 2-1 decision, the National Labor Relations Board held that it will continue to adhere to the "clear and unmistakable waiver" standard used to determine if an employer commits an unfair labor practice by making a unilateral change in employees' terms and conditions of employment during the life of a collective bargaining agreement. For over 50 years, the Board has used this approach to require that an employer has the statutory duty to bargain before making a unilateral change, unless the union unequivocally and specifically waived its right to insist upon bargaining. In Provena Hospitals, the Board considered the "contract coverage" approach which had been adopted by two federal appeals courts. Under the contract coverage approach, if there was a contract clause relevant to the dispute, the parties would be deemed to have bargained about the subject and no refusal to bargain would be found. Despite the adoption of this approach at the federal appellate level, the Board held it was its function to determine labor policy and that there was no reason to abandon the firmly established clear and unmistakable waiver standard.

AGREEMENT TO ARBITRATE EMPLOYMENT DISPUTES EXTENDS TO USERRA CLAIMS

(October 16, 2007) A federal district court recently granted an employer's motion to compel arbitration of a claim brought by a former employee who alleged he was demoted upon his return from active duty in Afghanistan in violation of the Uniformed Services Employment and Reemployment Act ("USERRA"). The court in Landis v. Pinnacle Eye Care LLC held that the former employee must arbitrate his USERRA claim because he had previously signed a written agreement to arbitrate employment-related disputes. Despite the employee's argument that under USERRA he has the right to pursue his claim in federal court, the court ruled that there is no congressional intent within USERRA or its legislative history to preclude arbitration of USERRA claims.

COURT GRANTS PRELIMINARY INJUNCTION AGAINST DEPARTMENT OF HOMELAND SECURITY NO-MATCH RULE

(October 11, 2007 - UPDATED) Finding that "the balance of harms tip sharply in favor" of those challenging the no-match rule, and noting "serious questions going to the merits" of the rule, a federal court has granted a preliminary injunction blocking its implementation.

(September 5, 2007 - UPDATED) A federal district judge has signed a temporary restraining order barring the SSA from sending its first batch of no-match letters, finding that "serious questions" have arisen as to whether the DHS and SSA have exceeded their statutory authority in issuing the no-match rule. An October 1, 2007 hearing has been set to determine whether a preliminary injunction against the no-match rule will be issued. The DHS is expected to file objections to such an injunction later this month.

(September 4, 2007) The Department of Homeland Security (DHS) announced its final rule on Social Security Administration (SSA) no-match letters. This regulation is expected to take effect in September 2007. The rule relates to letters issued to employers by the SSA upon the discovery that a social security number does not match the information provided by the employer. The regulation gives an employer who receives a no-match letter from SSA, 30 days to examine its records to see if it can correct the deficiency. If the deficiency lies with the employer's records, then the employer can contact the SSA to correct it. However, if the employer cannot confirm that the error was as a result of its recordkeeping, then the employer must notify the employee of the date the employer received the no-match letter and give the employee 90 days to cure the problem. If, at the end of the 90 day period, the problem is not resolved, the employer has three days to complete a new I-9 form for the employee. The employee completing the new I-9 must present a document that contains a photograph to establish both identity and authorization to work in the US. If employers follow these procedures so that they comply with their legal obligations, they will not be charged with constructive knowledge that the employee lacks the authorization to work. Therefore, employers must perform due diligence once they receive no-match letters because it is clear from this regulation that DHS enforcement efforts will increase. Accordingly, prudent employers should begin taking steps to promote I-9 compliance immediately.

THREATENED DISCLOSURE OF RACE INSUFFICIENT TO STATE DISCRIMINATION CLAIM

(October 8, 2007) A federal district court recently dismissed an employee's discrimination claims based upon the disclosure or threatened disclosure of the employee's race. In Longmire v. Wyser Pratte, the plaintiff was born to a white mother and a black father. Plaintiff chose to identify himself as white in the workplace, rather than black or bi-racial. His boss, the sole owner of an independent risk arbitrage company, knew plaintiff's racial background. Plaintiff sued because, among other things, plaintiff's boss allegedly threatened to "out" plaintiff. The court rejected this claim. The court found that, even if plaintiff closely guarded the information, disclosure of plaintiff's race is not actionable conduct under discrimination laws.

NEW YORK EXPANDS WORKPLACE RIGHTS FOR NURSING MOTHERS

(October 8, 2007) With a recent amendment to the New York Labor Law, employers are now required to permit nursing mothers to express breast milk during the workday. The amendment calls for an employer to either permit an employee to use paid break or meal time, or provide for a reasonable unpaid break each day during which the employee can express breast milk for her nursing child for up to three years following child birth. In addition, employers are required to make reasonable efforts to provide private space in close proximity to the work area in which the employee may do so. The amendment is effective immediately and, under its protection, no employee who chooses to express breast milk in the workplace shall be discriminated or retaliated against.

NLRB RULES THAT CARD-CHECK RECOGNITION, EVEN IF FOLLOWED BY EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT, MAY NOT BAR EITHER A DECERTIFICATION OR OTHER NLRB PETITION

(October 3, 2007) The National Labor Relations Board, in Dana Corp., modified the existing certification bar and contract bar rules for voluntary recognition of a union. The Board, in reaching its 3-2 decision, observed that "both the Board and courts have long recognized that the freedom of choice guaranteed employees by Section 7 is better realized by a secret election than a card check. '[S]ecret elections are generally the most satisfactory--indeed the preferred--method of ascertaining whether a union has majority support.'" Going forward, notice of voluntary recognition and of the opportunity to file a petition with the NLRB within 45 days are needed to protect the new bargaining relationship (after the 45 day period) from decertification petitions or rival unions. Contracts entered into during the 45 day period will be protected by a contract bar against any elections, provided that the now-required notice is provided to the bargaining unit and no petition is filed within the 45 days period.

JURY FINDS PRO BASKETBALL TEAM'S OWNERS AND COACH LIABLE FOR SEXUAL HARASSMENT AND RETALIATION CLAIMS

(October 3, 2007 - UPDATED) A federal jury in the Southern District of New York has found in favor of the plaintiff in Anucha Browne Sanders v. Madison Square Garden. Browne Sanders claimed that she was the victim of sex discrimination, sexual harassment and retaliation against MSG, Isiah Thomas and James Dolan. Browne Sanders accused Thomas of engaging in unwanted sexual advances. She further claimed that her employment was terminated as a result of her complaints about the alleged harassment.

(August 17, 2007) A federal judge in the Southern District of New York has denied all motions for summary judgment in the case of Anucha Browne Sanders v. Madison Square Garden, et al., clearing the way for a jury trial of her claims. This case concerns Browne Sanders' claim of sex discrimination, sexual harassment and retaliation against MSG, Isiah Thomas and James Dolan. Browne Sanders accuses Thomas of engaging in unwanted sexual advances. She further claims that her employment was terminated as a result of her complaints about the alleged harassment. Both sides sought partial judgment in their favor. The Court refused, finding that all of the claims were for a jury to decide. Interestingly, however, the Court opined that Browne Sanders' retaliation claim is "formidable" because Dolan's testimony could be read "as essentially conceding that the firing was retaliatory." Absent a settlement, the trial could begin before the Knicks' upcoming basketball season.

MERE RIGHT TO ASSIGN PARTICULAR TASKS IS INSUFFICIENT FOR "SUPERVISOR" STATUS UNDER STATE DISCRIMINATION LAW

(October 2, 2007) A federal court of appeals recently held that an alleged harasser's ability to assign particular job tasks to an employee did not make him the employee's supervisor. Accordingly, it affirmed the lower court's dismissal of her state law sexual harassment claim. The court reasoned that "supervisor" status could be found only where the alleged harasser had the authority to take tangible employment action against the victim. Here, because the alleged harasser lacked the authority to hire, fire, promote or reassign the employee to significantly different duties, the plaintiff was unable to show that she experienced "unwelcome sex-based harassment that was sufficiently severe or pervasive enough to alter a term, condition, or privilege of her employment" as required by the state's civil rights act Even though the plaintiff alleged the harasser assigned her to work with an unsafe co-worker for refusing his advances, the court determined that such conduct did not constitute a tangible employment action for supervisor status to attach.

DISTRICT COURT RULES USERRA DOES NOT PROTECT LEAVE FOR TREATMENT OF SERVICE-RELATED MEDICAL CONDITION

(September 24, 2007) In Moore v. Epperson Underwriting Co., Plaintiff complained that he was discriminated against in violation of the Uniformed Services Employment and Reemployment Act of 1994 ("USERRA") when he was terminated following absences to treat medical conditions he developed as a result of service in the Iraq. Plaintiff also alleged that his employer violated USERRA by retaliating against him for reporting what he believed to be a USERRA violation. A federal court dismissed the discrimination portion of Plaintiff's claim, holding that seeking medical treatment for a service-related medical condition did not constitute "service in the uniformed service", a requirement to maintain a claim under USERRA. Of note however, the court did allow Plaintiff's USERRA retaliation claim to proceed based upon the fact that he was terminated shortly after complaining about what he perceived to be discriminatory treatment under USERRA.

NEW YORK CREATES MULTI-AGENCY TASK FORCE TO ENFORCE VIOLATIONS OF LABOR LAWS RELATED TO MISCLASSIFICATION OF WORKERS AS INDEPENDENT CONTRACTORS

(September 24, 2007) New York Governor Eliot Spitzer signed an executive order creating a multi-agency task force to strengthen enforcement of labor laws involving the misclassification of workers. The task force will focus on the misclassification of workers as independent contractors instead of employees. Under the order, the Joint Enforcement Task Force on Employee Misclassification will coordinate the investigation and enforcement of employee misclassification requirements across all state agencies, including the state department of labor, workers' compensation board, attorney general, and department of taxation and finance.

NEW JERSEY LIMITS RIGHT TO UNEMPLOYMENT BENEFITS FOR RECIPIENTS OF SEPARATION INCENTIVE PACKAGES

(September 10, 2007) In In re Adoption of N.J.A.C. 12:17-9.6 by N.J. Dep't of Labor, a New Jersey appeals court declared invalid a state Labor Department regulation that made employees who accepted a voluntary layoff or an early retirement incentive package during a reduction in force eligible to receive unemployment benefits. Under the regulation, enacted in 2003, an employee was not automatically disqualified from unemployment benefits if he or she accepted an employer's severance benefits. The appeals court found that the regulation was inconsistent with established New Jersey law, which only allows claimants who voluntarily accept an incentive package to collect unemployment benefits if (1) they are in fear of an 'imminent' layoff, or (2) would suffer a substantial loss if they did not accept the employer's early separation incentive package.

NEW YORK STATE WAGE CLAIMS HELD PREEMPTED BY LMRA

(September 4, 2007) Verizon workers in New York, New Jersey and Pennsylvania sued Verizon in Levy v. Verizon Info. Servs. Inc. alleging that chargebacks and other deductions were taken from their pay in violation of state labor laws, including the New York Labor Law. The Eastern District of New York held that the state law claims were preempted by Section 301 of the Labor-Management Relations Act because the claims were dependent on the Court's interpretation of the collective bargaining agreement referencing Verizon's pay plans. The Court determined that federal law controlled the employees' wage claims.

SECOND CIRCUIT REFUSES TO REQUIRE ARBITRATION OF DISCRIMINATION CLAIMS AS REQUIRED UNDER A UNION CONTRACT

(August 1, 2007) The federal Second Circuit Court of Appeals denied the employer-defendants' appeal from the District Court's refusal to compel arbitration of the plaintiffs' age discrimination complaint. In Pyett v. Pennsylvania Building Company, the Circuit adhered to its reasoning in Rogers v. New York University that the U.S. Supreme Court's decision in Alexander v. Denver-Gardner allows employees to pursue statutory claims, like discrimination claims, in court despite a union contract's requirement that disputes go to arbitration.

U.S. SUPREME COURT DECIDES THAT HOME HEALTH CARE PROVIDERS ARE NOT ENTITLED TO OVERTIME PAY

(June 11, 2007) The United States Supreme Court, in Long Island Care at Home v. Coke, unanimously decided that a Labor Department regulation that provides an exemption to the Fair Labor Standards Act for third-party home health care providers is valid. Under federal law these employees are not entitled to overtime compensation for hours worked over 40 in a workweek or to the minimum wage rates. State laws may, and, for example in New York do, impose other restrictions not affected by this decision.

NEW REQUIREMENTS FOR HEALTH CARE INSITUTIONS RECEIVING MEDICAID PAYMENTS

(December 12, 2006) Many large health care organizations will be required to inform their employees about federal and state fraud and abuse laws as of January 1, 2007, when Section 6032 of the federal Deficit Reduction Act takes effect. Specifically, the Act requires entities that receive or pay annual Medicaid payments of $5 million or more to establish new written policies for all their employees, including management and any contractor or agent of the entity, which shall also be included in any employee handbooks. These written policies must provide detailed information about: 1) the federal False Claims Act; 2) the administrative remedies for false claims and statements; 3) any state laws pertaining to civil or criminal penalties for false claims or statements; 4) whistleblower protections under the federal False Claims Act and any state laws; and 5) the organization's own policies and procedures for detecting and preventing fraud, waste, and abuse in federal healthcare programs.
At this time, there are no specific penalties within the Act for organizations that fail to comply with the new requirements; however, Congress has conditioned receipt of Medicaid payments on implementation of the above-mentioned written policies. In order to ensure that your organization is in compliance with the Act as of January 1, 2007, we recommend that those entities subject to the provisions of the Act begin creating written policies and incorporating the policies within their employee handbooks.

FEDERAL APPEALS COURT REVERSES DECISION THAT NEW YORK'S LABOR NEUTRALITY LAW IS PREEMPTED BY THE NATIONAL LABOR RELATIONS ACT

(December 5, 2006) In Healthcare Association v. Pataki, the Second Circuit reversed the district court's grant of summary judgment finding that New York's labor neutrality law is preempted by the NLRA. The state law sought to restrict the use of state funds to influence union organizing campaigns by employers receiving the public money. The appeals court concluded that the proper analysis of the claims was whether the state attempted to limit the spending of state funds for the purpose chosen by the state or whether the state was attempting to restrict, through its spending power, the recipients' protected speech beyond their dealings with the state. The court found that there were still facts in dispute or unrevealed involving this question making summary judgment inappropriate. The court's decision does not end the case and the lawfulness of the labor neutrality law remains in question, subject to further development of the record at the district court.

IMMEDIATE TERMINATION FOLLOWING ARBITRATION AWARD REINSTATING EMPLOYEE PERMISSIBLE

(December 1, 2006) The federal Third Circuit Court of Appeals in UFCW Local 1776 v. Excel Corp. found that an employer complied with an award where an arbitrator awarded reinstatement of an employee and, in its letter to the employee implementing the award, the employer terminated the employee again for post-termination misconduct. The court based its decision on the facts that (1) arbitrator did not accept evidence of the post-termination misconduct; (2) the union and the employee had notice of the post-termination misconduct; (3) the post-award letter to the employee effectively reinstated the employee as required by the award (the employer also paid the employee the back pay required from the time of the initial discipline to the time of the post-termination misconduct and the effective date of the second termination); (4) the second termination was separate from the first termination; and (5) the union filed a grievance about the second termination. Of note, the court rejected the notion that the employer had to return the employee to work, even for a day, to comply with the reinstatement ordered by the arbitration award.