IRS Circular 230 Notice: Most employee-side attorneys try to avoid giving tax advice, but many still tiptoe into the thicket by saying (or, more prudently, writing) something like, “I think your attorney fees might be excludable from your income, and your back pay will all be taxable, but check with your tax professional. I’m not a […]
Court holds that OSHA pre-empts state pro-gun laws
Alaska lightly restricts an employer’s right to control guns at work. Employers may bar guns from the central workplace, but have less control over guns in their employees’ parked cars. AS 18.65.800. Other states place tighter restrictions on employers. SHRM reports that Oklahoma “prohibits employers from establishing policies banning employees […]
Judge Burgess dismisses Allstate’s dec action for lack of subject-matter jurisdiction
Allstate’s aggressive use of a declaratory judgment action to litigate its potential bad faith was rejected by Judge Timothy Burgess in Allstate v. Fielder, et al., Case No. 3:04-cv-00246-TMB.
Allstate brought that action claiming that Robert Libbey (an Anchorage plaintiff’s attorney), the personal representative of the […]
Today the U. S. Supreme Court announced it will review the $2.5 billion punitive damages award from the 9th Circuit. The Court’s order reads:
The petition for a writ of certiorari is granted limited to
Questions 1, 2, and 3(1) presented by the petition. Justice
Alito took no part in the consideration or decision of this
petition.
Law.com reports:
Significantly, the […]
An employment opinion, and two other opinions that may be of interest to the employment bar; and a Comment
Set-aside criminal convictions and licensing: In State, Bd. of Nursing v. Platt, 2007 WL 3121603 (Alaska Oct. 26, 2007), the Supreme Court reversed the Superior Court (Charles Huguelet) and held that the Nursing Board may properly consider a […]
The Cast
George Clooney (Mickey)
Tilda Swinton (Karen)
Sidney Pollack (Marty)
Tom Wilkinson (Arthur)
The Summation: You are supposed to like this film. There is an all-star cast, great performances, and nice packaging. However, the script is blah and dated, and filmed 15 years too late.
The Caution: This review contains spoilers. Do not read if you intend to pay money […]
Pleadings include other whistleblower awards in the District of Alaska
The Anchorage Daily News recently published an article about a fine and penalties levied against a Conoco Phillips tanker company, Polar Tankers, Inc. Polar terminated both the Captain and the Chief Mate. In the criminal case, the government recommended a whistleblower crewman receive $250,000 from the $500,000 fine assessed […]
Sitka: Gov. Palin has appointed David George to the Superior Court seat vacated by Larry Zervos. Mr. George’s biographical statement is here.
Fairbanks: The overall ratings for the candidates for this Superior Court seat to be vacated by Niesje Steinkruger on Nov. 2nd are out today. They are:
Michael McConahy 4.1
Beth Harbison 4.0
Jane Kauvar 3.9
Paul Lyle 3.6
Poke Haffner 3.5
Zane Wilson 3.5
Lori […]
Text lays out insufficient funding and negligent monitoring
BP Exploration (Alaska), Inc. has agreed to plead guilty to one count of violating the Clean Water Act with regard to a 200,000-gallon spill on the State land on the East side of Prudhoe Bay in March of 2006.
The text of the 30-page Plea Agreement is here, here, and here. Here is the State letter accepting the […]
Judge Beistline certifies issue of public policy tort to the Alaska Supreme Court
In this case, reported earlier, Judge Beistline has certified the following question to the Alaska Supreme Court:
Does an at-will employee have a tort public policy claim under Alaska’s implied covenant of good faith and fair dealing when an employer discharges that employee in order […]
Since the mid-1990’s, the success rate of plaintiffs who bring employment lawsuits has steadily increased. [Fn] [National] jury verdict statistics shows that in 1994, only fifty percent (50%) of plaintiffs were successful at trial. By contrast, sixty-four percent (64%) of plaintiffs who went to trial in 2006 were successful on their claims. In fact, between […]
The return of the Alaska Federation of Natives convention to Fairbanks this week prompted attorney Barry Jackson to reflect on his contributions to the drafting of the 1971 Alaska Native Claims Settlement Act. Jackson’s thoughts appear in an October 21st OpEd Piece in the News-Miner.
Jackson’s strength was his connections with Interior tribes, especially Minto. He was pivotal in the decision […]
ADA and alcoholism: The 9th Circuit has affirmed summary judgment for an employer that fired an employee who failed an alcohol test during work hours. The employee claimed discrimination based on his disability of alcoholism.
The Court stated:
The evidence shows that Sierra terminated Daft for his misconduct, failing an alcohol test during work hours in violation […]
Judge Beistline distinguishes among kinds of injunctions
After the Disability Law Center received six reports that Special Education students in a classroom had been mistreated, it asked the Anchorage School District to release the names of the students’ parents/guardians. When the District refused, citing various statutory bases for confidentiality, the Center filed suit, and requested that information […]
Alicia Porter, an attorney in Fairbanks, has started a blog on patent law. She may venture into other areas of intellectual property law, including trade secrets.
Stevens Wells, an Anchorage practitioner who publishes under the name Alaskablawg, seems to have been the first blogger on Alaska law. He started blogging in October of 2004. Wells previously was a PD […]
Richard Russo has written some wonderful books. Actually, all of his books have merit, and some are really outstanding: his last, Empire Falls, won the Pulitzer Prize for fiction. His latest is Bridge of Sighs, a big 527-page novel in which Russo once again creates lives in a small town off in the middle of […]
Stevens and Murkowski differ
The DOL Office of Labor Management Standards enforces the Labor-Management Reporting and Disclosure Act of 1959 (aka the Landrum-Griffin Act), which lays out, in five titles, the rights of union members vis-a-vis their own union - the right to speak freely, to be disciplined only under fair procedures, to obtain financial information, etc.
The […]
From the law.com profile of Alex Kozinski, the Chief Judge of the Ninth Circuit starting December 1st:
”I’m buying old copies of Playboy magazine on eBay, because everything I learned about writing I learned from Playboy fiction,” he said in a recent phone interview.
And he wants to pass writing skills on to his law clerks, particularly […]
Ethics of multiple client representation: ABA Formal Opinion 06-438 on this subject (both as to initial representation and as to settlement negotiation) is here.
DAlaska on expert testimony: Judge Ralph Beistline has published his opinion on the admissibility of a surveyor’s report, in Kubanyi v. GVEA, 2007 WL 3002070 (D.Alaska Oct. 12, 2007).
FMLA research: Attorney Carl Bosland runs a helpful […]
Same issue was recently before the Alaska Supreme Court
The 9th Circuit has referred the issue of social worker immunity from § 1983 claims to an en banc panel.
In Beltran v. Santa Clara County, 491 F.3d 1097 (9th Cir. 2007), earlier this summer, a three-judge panel held that a social worker who allegedly submitted a […]
Landau on out-of-class pay; Reeves on past practice and interpretive rules
Chugach Support Services, Inc. & Teamsters Local 959: Arbitrator Robert Landau held that Chugach breached the CBA by failing to pay higher Cook II wages to Cooks I temporarily assigned to do the primary duty of a Cook II (and one that was not included […]
Sedwick remands for supplemented record
The Federal Highway Administration has decided to fund a 51-mile two-lane highway from the end of the exisiting highway in Juneau to a new ferry terminal at the Katzehin River delta. Citizens opposed to the project have challenged various administrative decisions approving the funding and related agency actions. They filed an action under the Administrative […]
The 9th Circuit has re-iterated its rule about unresolved state law issues, as follows:
when (1) a federal court is required to apply state law, and (2) there is no relevant precedent from the state’s highest court, but (3) there is relevant precedent from the state’s intermediate appellate court, the federal court must follow the state […]
Doug Mertz says that Frederick may appeal state issue
Judge John Sedwick on Wednesday issued his final order in the “Bong Hits 4 Jesus” case, unless the plaintiff takes an appeal and is successful.
Sedwick’s October 10th Order dismissed Frederick’s state law claim under Article I, § 5 of the Alaska Constitution (”Freedom of Speech”). He found […]
If an employer has earlier misapplied its policy, must it continue to do so?
Employers sometimes make mistakes by granting benefits to ineligible employees, or by failing to discipline culpable employees. Later, another employee may want the benefit of the same mistakes - either to get the same undeserved benefits, or to get immunity from discipline […]
“Amount in controversy” in employment matters with diversity jurisdiction: The $75,000 “amount-in-controversy” excludes interest and costs, but includes not only damages and attorney fees (at least when they are not statutorily defined as part of the “costs”), but also “the back payment of health benefits and taxes” and the costs of any “accounting” that plaintiff […]
Judge Sedwick finds no inflammatory publicity, and notes lessened public interest in local news
Judge John Sedwick has denied Victor Kohring’s motion to transfer his criminal trial to the Western District of Washington. U. S. v. Kohring, 2007 WL 2949528 (D.Alaska Oct. 9, 2007).
Sedwick closely analyzes multiple newspaper and on-line reports concerning the Kohring and the VECO […]
Kerouac: His Life and Work, by Paul Maher, Jr., is the most recent “big biography” (500+ pages) of the man who wrote On the Road, Big Sur, Doctor Sax, Desolation Angels, The Subterraneans, The Dharma Bums, The Town and the City, Visions of Cody, and another score of lesser known books of fiction, poetry and […]
Mark Choate here responds to Judge Beistline’s Order dismissing his client’s Public Policy claim
Choate writes:
I read with interest the comment [Ed.: found here] pointing to Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783 (Alaska 1996), as it provides some pretty good insight as to how the Supreme Court, at least a decade ago, dealt […]
Judge Burgess: Such claims may be brought only in state court
The Uniformed Services Employment and Reemployment Rights Act, 38 USC § 4301 et seq. (USERRA), authorizes suits against both state and private employers. While USERRA has always provided that suits against private employers may be brought in federal court, it was amended in 1998 to provided that […]
This Wednesday afternoon the Alaska Judicial Council sent up four names for the vacancy created by retiring Supreme Court Justice Alex Bryner:
Joel Bolger (Kodiak Superior Court Judge);
Morgan Christen (Anchorage Superior Court Judge);
Andy Harrington (ALSC Ex. Dir.); and
Dan Winfree (Fairbanks Memorial Hospital Foundation Ex. Dir.).
Judge Burgess: the Employee’s Intangible Losses are not Irreparable
Barbara Flory works at Wal-Mart in Anchorage as a greeter. Because of pain, she requested accommodations, but Wal-Mart denied them. She then filed disability discrimination charges against Wal-Mart, and shortly thereafter a Complaint in federal court.
Flory filed her charges with the Anchorage Equal Rights Commission and the EEOC. Neither agency has […]
The plaintiff in Felthauser v. United States claims that the VA took four years to respond to his request for copies of his medical records, and then sent the records to somebody else. When he sued for violations of the Privacy Act and HIPAA, the VA moved to dismiss.
Judge John Sedwick denied the VA’s limitations […]
Judge Beistline Certifies “Sweetie” Issue to the Alaska Supreme Court; A Comment
As earlier reported on this site, Judge Ralph Beistline on October 1st held that a dismissed employee need not identify “a clear mandate of public policy” as a predicate to a tort public policy claim or to an implied covenant contract claim based on a violation of public […]
Proposed DOL regulations: Monday, October the 8th, is the deadline for comments on the proposed changes to DOL regulations about overtime exemptions, child labor, and return transportation.
Fairbanks as sanctuary city: Sunday’s Fairbanks Daily News-Miner (B-1) covers an Ohio website that lists Fairbanks as a “Sanctuary City” - one that has an official or unofficial city policy of protecting illegal aliens. […]
In honor of the playoffs, here’s some baseball reading: Opening Day: The Story of Jackie Robinson’s First Season, by Jonathan Eig, and Ballparks Then and Now, by Eric Enders.
Mr. Eig, a senior special writer for the Wall Street Journal, broke into the world of baseball books a year or two ago with his really excellent biography of […]
Employers are sometimes tempted to characterize employees as “independent contractors,” hoping thereby to avoid certain tax obligations. Several years ago, Microsoft came out on the losing end when its “ICs” successfully sued to recover pension benefits. Vizcaino v. Microsoft Corp., 120 F.3d 1006 (9th Cir. 1997)(en banc). More recently, FedEx “ICs” in California have recovered work-related expenses under […]
Grey Mitchell, Director of the Labor Standards & Safety Division of the state Department of Labor, has issued two WHPLs (Wage & Hour Policy Letters).
The first (08/08/07) amends WHPL # 169 and, based on AS 11.76.100(a)(4), states that retailers selling tobacco products may not employ minors under 19 to sell those items.
The second (09/27/07) clarifies WHPL […]
The 9th Circuit has vacated Judge Beistline’s summary judgment in the employer’s favor on a Title 18 claim of retaliation. The Court affirmed Beistline on a a disparate treatment claim. The appellate opinion is unpublished.
Dwight Greene, a manager of the Northern Lights branch of FedEx Kinko’s, complained that FedEx provided him less support than it provided to the […]
SH training for supervisors: We earlier discussed the absence of hard federal or industry standards for adequate sexual harassment training, and suggested that state legislatures might fill in the gap. California, for instance, has legislated criteria for SH training for supervisors of larger employers. Connecticut Employment Law Blog points out that that state has also adopted […]
Governor Sarah Palin has tasked an Executive Branch Working Group with presenting recommendations by November 1st on the recruitment and retention of Executive Branch employees, especially professionals. According to her Administrative Order 237, turnover is up, many vacancies attract fewer than five qualified applicants, and a sizeable fraction of current employees will soon reach retirement […]
The plaintiff in Johnson v. Fred Meyer Stores, Inc. claims that her supervisor replaced her with [CORRECTION] a woman toward whom he had romantic feelings. Her various statutory claims (age, FMLA, etc.) have been dismissed or withdrawn (Docket # 81, 02/09/07), leaving only a common law count for breach of the implied covenant of good […]
The author reviews the Supreme Court’s docket for the October 2007 ELS Meeting
Introduction
The United States Supreme Court’s 2007-08 Term opens on October 1, 2007 (the “First Monday in October”). From 2000 to 2005, the Court reviewed an average of seven Labor and Employment cases each Term. Last year, however, the Court accepted only two Labor […]
The Seattle office of the EEOC has sued NEA-Alaska on behalf of Denise Poole and a class of all similarly-situated female employees, alleging harassment and intimidation on the basis of sex, and for retaliatory harassment and intimidation as a result of having complained about the underlying harassment.
The present suit follows an earlier one for similar alleged […]
