A couple of movies, a bio, and some music this time.
I know The Bourne Ultimatum has been getting good reviews, but… but… there’s nothing to it. Non-stop action that verges on the impossible all too quickly (my disbelief really did not have much time to be wilfully suspended). Tension without plot. There’s no balance! My idea […]
I. Employers Must Promptly and Effectively Investigate Employee Complaints of Discrimination, Harassment, and/or Retaliation
A. The Employer’s Dilemma
Whenever a complaint of discrimination, hostile work environment, and/or retaliation is brought to employer’s attention, the employer faces a two-edged sword. If the complaint is not promptly and effectively investigated, the complainant may sue the company based on the […]
What is proper standard: “deliberate indifference” or “shocks the conscience”?
Judge John Sedwick has held that parents stated a claim under 42 USC § 1983 against a State Trooper who shot their adult son. The son was in a stopped car in a pull-out on the Sterling Highway. After the son refused to get out of the car, […]
Court creates split with 11th Circuit
When the 1991 Congress amended various civil rights statutes, it narrowed the mixed-motive defense in Title VII, but not Section 1981 claims, in response to Price Waterhouse v. Hopkins, 490 US 228 (1989). Price Waterhouse, after all, was a Title VII, not a § 1981 case. The question arises, then, whether […]
Yesterday’s Wall Street Journal (09/25/07 WSJ, A-18) carried an op-ed piece by Yeshiva University Law School professor Lester Brickman that publicizes a request for a Formal Opinion from the American Bar Association concerning plaintiff counsel’s negotiation with defendants for direct payment of plaintiff’s fees.
The request comes from 20 law school faculty members who apparently are experts […]
The U S Supreme Court added two employment cases to its docket today - one, about whether § 1981 includes retaliation claims, and the other about use of age in public retirement plans. See EEO Developments and Workplace Professor for more details. The Court had earlier granted cert in two other employment matters.
At the next […]
Alaska law offers some protection to the employee who is brought to the job by the employer, and then is stranded there without fault.
The statute. Alaska Statutes 23.10.380-400 provide:
Sec. 23.10.380. Right to return transportation.
(a) An employer who furnishes, finances, agrees to furnish or finance, or in any way provides transportation for a person from the […]
UTPA May Play Powerful Role in Employment Cases
This site has previously raised the possibility that plaintiffs might use the state’s Unfair Trade Practices Act to enforce selected employment-related claims. If that possibility comes to pass, Friday’s opinion from the Alaska Supreme Court will be very important.
In Kenai Chrysler Center, Inc. v. Denison, Op. No. 6167 (Alaska […]
Fairbanks: Drugs & property: John Collette’s continuing battle to recover property associated with a marijuana-growing enterprise may have a chance. Collette studied law while serving 8 1/2 years. Representing himself, he recently convinced the 9th Circuit that the DEA had failed to give him adequate notice before seizing some of his property, according to the Court of Appeals’ September 6th unpublished opinion.
Juneau: […]
Bootleg recordings of popular music first appeared around 1969, when a vinyl collection of unknown Bob Dylan songs, in a plain white album jacket labeled The Great White Wonder, began to circulate. This was soon followed by a leaked copy of an early mix of the Beatles’ Let It Be album, which was played on […]
The 9th Circuit this morning held that the Alaska Right to Life PAC did not present a justiciable controversy when it sued members of the Alaska Commission on Judicial Conduct and the Disciplinary Committee of the Alaska Bar Association concerning questionnaires the PAC distributed to Alaskan judges up for retention in 2002.
Twelve judges or justices were […]
The 9th Circuit panel that heard arguments in Fairbanks, Alaska, on August 10th has now resolved all of the Social Security appeals before it. The panel was composed of Judges Wallace, Noonan, and Paez.
In three of the opinions, the panel outright reversed the District Court.
In Hornbeck v. Astrue, 2007 WL 2693724 (9th Cir. Sept. 10, […]
The WestClip service is part of any Westlaw subscription. Once a day (or less frequently, if you wish), West will inform you if it has published an opinion with your search terms in part of your subscription database. If you want faster service, you can get it, but West will charge you for it. Under either […]
The Alaska Department of Labor has again extended the time for comments on its proposed revisions to the Wage and Hour Act. The new deadline is October 8th, at 4 pm. Here are the supplemental notice and text of proposed changes.
The proposed regulations would substantively change the current law in the following ways.
Calculation of regular hourly […]
A company called Onecle sponsors two sites that offer help on drafting employment contracts, using actual contracts from major American corporations, including many companies that do business in Alaska.
The first site collects hiring contracts from such companies as ARAMARK, Fluor, Home Depot, Marsh & McLennan, and Outback Steakhouse.
The other site posts severance agreements from similar companies, […]
Many collective bargaining agreements contain grievance procedures specifying that when a grievance proceeds to arbitration, the arbitrator will be selected from a panel obtained from either the American Arbitration Association or the Federal Mediation and Conciliation Service. Because there are significant differences in the services provided by these two organizations, a descriptive comparison may be useful […]
Alaska doesn’t require local bar admission for lawyers who represent parties in arbitration, so long as the attorney doesn’t represent that he or she is licensed by the Alaska Bar Association. See Bar Rule 63 (defining the unauthorized practice of law); AS 08.08.230 (making unauthorized practice of law a misdemeanor).
California, on the other hand, provides […]
9th Cir: DWI is not crime of moral turpitude, but DWI without a license is
Some statutes and many employee handbooks provide that conviction of a crime of “moral turpitude,”or even simply an act of “moral turpitude,” is grounds for dismissal. In Alaska, for instance, a school district may non-retain a tenured teacher because of ”immorality, which is defined as […]
Reconsideration motions are due within five days “after entry” of the order. Local Rule 59.1(b)(1). Entry occurs when the clerk “serves” the written order (or the clerk’s minutes, if there is no written order) by entering it into the ECF system. LR 59.1(b)(3). Because LR 5.3(f)(2) equates electronic filing with service by first class mail, and because F.R.Civ.P. 55(b)(2)(D) and […]
In two opinions issued Friday, the Alaska Supreme Court discussed the relationship between state law and federal civil rights claims under 42 USC § 1983.
1) Prentzel v. State. The first opinion put an end to Thomas Prentzel’s wrongful arrest claims (both state and federal) against several Alaska State Troopers. On remand from an earlier opinion, […]
Court notes difference between FRE 403 and ARE 403
Judge Sedwick continues to publish his evidentiary rulings in U. S. v. Kott, 3:07-cr-056 JWS (D.Alaska).
In the first, he addresses the government’s motion regarding evidence of VECO’s campaign contributions and payments for candidate pollings; evidence how other legislators voted on PPT; and the scope of cross-examination of Bill […]
Restless, by William Boyd, is a terrific spy thriller with loads of tension, though not much violent action (that’s not meant as a negative). The heroine, born Eva Delectorskaya, was conscripted as a spy for the British in World War II after her brother (unknown to her, also a spy) was assassinated. Living in England […]
Eight of the 14 remaining applicants for the Alaska Supreme Court vacancy had “Overall Ratings” of 4.0 or higher. The ratings ranged from 2.8 to 4.4. The summary table may be reviewed here. The entire Judicial Council Report is here. Two applicants recently withdrew from the process - Alfred Clayton and Robert John.
Court of Appeals Affirms Judge Sedwick; Result may Differ under Alaska Law
The City of Mesa, Arizona, required Christine Nilsson, an applicant for a police position, to waive any claims arising out of the City’s pending investigation of her background. After she complied, the investigation proceeded and revealed an EEOC dispute with a previous employer, workers comp claims, […]
False Claims Act Correction Act of 2007 Introduced by Senators Grassley, Durbin, Leahy, and Specter
Important legislation designed to protect taxpayers from fraudulent government contractors was introduced September 12th in the Senate by Senate Judiciary Chairman Patrick Leahy (D-VT), Ranking member Arlen Specter (R-PA), longtime whistleblower champion Charles Grassley (R-IA), and Judiciary Committee member Dick Durbin (D-IL). […]
Both federal and Alaska law govern an employer’s use of lie detector (polygraph) tests. The federal law specifically permits a more restrictive state law. 29 USC § 2009. Alaska does have a polygraph law, and one that, in fact, offers more protection to employees than does the federal law.
The federal Employee Polygraph Protection Act (EPPA) bars private sector […]
Serial Alaska Bar Association lecturer Erwin Chemerinsky has a chance to make some employment law. One week after hiring him, the University of California Irvine has fired Chemerinsky as the Dean of its Law School (to open summer of 2008). Chemerinsky says the school fired him because the administration found his political views too controversial. No word yet regarding […]
Judge John Sedwick has published two more opinions in U S. v. Kott & Weyhrauch, 3:07-cr-00056 JWS (D.Alaska).
In the more recent opinion, Judge Sedwick held that AS 24.60.030(3) does not require a legislator to disclose negotiations for employment. Other portions of AS 24.60 (”Standards of Conduct”) expressly require disclosure of various legislator actions. Thus, the absence […]
1) Employer’s good faith: An employer’s good faith belief that an employee had filed a discrimination complaint in bad faith provides no defense to the subsequent claim. See this good discussion of a recent District Court decision in Wait a Second!, the blog on 2nd Circuit civil rights opinions.
2) WARN Act coverage for construction workers: […]
The Legislature created the Workers Compensation Appeals Commission in 2005 as part of an effort to increase efficiency and consistency in the processing of WC claims. The Legislature removed Superior Court jurisdiction over WC appeals (and gave that role to the Supreme Court), and provided that Commssion rulings would have the “force of legal precedent.”
AKPIRG challenged […]
Over the weekend I read — mostly aloud to my wife, actually – Plato and a Platypus Walk Into A Bar, by Cathcart and Klein. A relatively short book, Plato aspires to reveal some truths (and confusions) of philosophy by reference to jokes. It’s an odd premise, but it works, and parts of the book […]
The 9th Circuit has reversed Judge Timothy Burgess, and held that a commerical liability carrier breached its duty of good faith and fair dealing to its insured by issuing an inadequate denial of coverage. The Court of Appeals held:
The denial letter made no reference to any specific law or facts relating to Lutz’s dispute with […]
The Anchorage law firm of Richmond & Quinn provides a handy calculator of prejudgment interest and (state) prejudgment attorney fees on the firm’s website. All you need do is enter the date of loss, the amount of the loss, and the end date for the loss. The calculator does the rest, including figures Rule 82 […]
Discussion of ”Ten Things I Learned the Summer of 2007″ at yesterday’s Employment Law Section meeting raised several issues.
Attorney fees under AS 09.60.070. First, what is the burden of proof regarding the “serious criminal offense - preponderance, or proof beyond a reasonable doubt? The statute doesn’t address that, but I would suggest that the standard is the […]
A TSA probationary “security screener,” employed under a statute that bars him from any administrative remedies, may still sue in District Court to obtain equitable relief for violation of his constitutional rights, though Congress could eliminate even that limited right it if expressed itself clearly. So held the 9th Circuit in AFGE Local 1 v. […]
Today’s meeting of the Employment Law Section will feature Rob Schmidt’s review of Jurgens v. City of North Pole, 153 P.3d 321 (Alaska 2007); Pyramid Printing Co. v. ASCHR, 153 P.3d 994 (Alaska 2007), and Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). Attached in PDF format is the paper version of Rob’s review.
In U. S. v. Kott & Wehyrauch, (D. Alaska Aug. 1, 2007), Judge Sedwick rejected a criminal defendant’s request to move his trial from Anchorage to Juneau. Last week, in another criminal matter, Judge Sedwick denied a request to move a trial from Anchorage to Nome.
Employment Law Section
Alaska Bar Association
September 5, 2007
1. Title 18 attorney fees: A prevailing plaintiff in a Title 18 sexual or racial harassment case may recover actual attorney fees if she/he proves a criminal “assault in any degree,” or “a sexual assault in any degree.” AS 09.60.070(c)(4), (6). AEL discussion: http://www.akemplaw.com/wiki/?p=96
2. Trade secrets: The Alaska Uniform Trade […]
Evergreen Aviation fired Taheri after it allegedly found him sleeping on the job. Taheri claimed Evergreen retaliated against him for his complaints to the Alaska Human Rights Commission about discrimination based on national origin, race, religion, and age. Judge Ralph Beistline granted summary judgment against Taheri, holding that while Taheri had presented a prima facie […]
Lenny Arsenault was Business Manager of Fairbanks Local 375 of the United Association of Plumbers and Pipefitters from 1976 through 1991. For the last ten of those years, he was also International Vice President of the UA, responsible for all the West Coast locals. During his reign, Arsenault’s power within the Alaska labor movement was exceeded only […]
In Williams v. United Airlines, Inc., 2007 WL 2458504 (9th Cir. Aug. 31, 2007), the court held that the Whistleblower Protection Program of the federal Airline Deregulation Act, 49 USC § 42121, does not create a private right of action for enforcement. The employee’s sole recourse under the Act is to file an administrative complaint with the […]
Introduction
For many years now I have been trying to discover the earliest recorded song that really and truly sounded like surf music. You know, surf music – guitars and a drum kit, a particular sound, and typically lots of reverb – a “wet” guitar sound. Surf historians have traditionally identified Dick Dale, on the one […]
