9th Circuit: Alex Kozinski became Chief Judge today.
Alaska Supreme Court: Dan Winfree will be privately sworn in January 4th, and publicly sworn in on February 11th or 12th, in Fairbanks. His chambers will be in Fairbanks. The Court System will ask the Legislature for a supplemental appropriation to finish the Rabinowitz Courthouse, in part, to […]
A recent Gannett News article surveys the various Title VII and FMLA claims that employers face from employees who provide care to family members.
We earlier covered the new (May 23, 2007) EEOC Guidance on employer responsibilities toward these employees.
According to the article, EEOC’s action was prompted by an upsurge in claims filed by caregivers, including pregnant employees and […]
Court calls brief “a slubby mass of words”
In an employment discrimination case where the employee-appellant, represented by counsel, filed a defective brief, the Court today struck the brief and dismissed the appeal. The panel stated:
We publish this opinion as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated.
Discussion
[1] […]
In an average week, one or two opinions from the District of Alaska appear on Westlaw. Westlaw’s selection criteria are a bit of a mystery.
Today, for instance, Westlaw published Judge Sedwick’s Order From Chambers in U. S. v. Spencer, 2007 WL 4166230 (D.Alaska Nov. 20, 2007), in which he rejected a pro se criminal defendant’s motion to […]
UC-Berkeley’s Institute for Research on Labor & Employment has created an on-line Labor Contracts Database. It appears to be heavily weighted toward public-sector contracts, but that may simply reflect the fact that unions are increasingly public-sector phenomena.
The Database includes the University of Alaska/AFT and the State of Alaska/AFCSME contracts.
H/T: Workplace Professor.
Two recent appellate opinions illustrate the possibilities and limitations for employees pursuing wage claims.
The 9th Circuit case reminds practitioners that § 301 permits an individual union member to sue for unpaid wages laid out in the CBA, as well as for wrongful discharge.
Although claims arising under a collective bargaining agreement that concern questions of labor policy […]
Yesterday’s PBS/NOW program on the VECO scandal, Oil, Politics & Bribes, may be found here.
The final text of the 25 % tax act is here.
In a perfect world, he would have been the bass player
The supply of new books about the Beatles is endless, and will likely remain so for … ah, who knows? So let’s say forever. Still, authors continue to search for new angles, and thus we come to While My Guitar Gently Weeps: The Music of […]
Federal OSHA issued the final regulation on Personal Protective Equipment on November 14th. The rule becomes effective February 13, 2008. Employers must implement it by May 15, 2008.
According to OSHA’s fact sheet:
What is required PPE and who pays: Employers must pay for almost all personal protective equipment that OSHA requirein its general industry, construction, and maritime standards. If an employer decides […]
Planned Parenthood rehearing: The State filed its petition for rehearing on November 13th. The Court System’s website says that PP’s Opposition is due November 30th. (Go to Motions/Orders, then click on item 32.)
Bong Hits 4 Jesus: The ex-Juneau student has appealed to the 9th Circuit from Judge Sedwick’s final judgment. Frederick’s issues on appeal are:
1) Did the District […]
In a recent post, I outlined some problems with Casemaker, the new legal research program provided by the Bar Association.
The founder of Casemaker, Ohio attorney Joseph Shea, has responded to that poist, and to another user’s criticisms, in a detailed letter to Bar Association Ex. Dir. Deborah O’Regan. Shea has authorized me to publish his letter.
He advises […]
In an unpublished failure-to-promote race case, the 9th Circuit reversed a directed verdict for the employer after holding that the employee had presented enough evidence to get to a jury on the following bases:
Comparative qualifications:
Gibson need not prove that he would have been promoted “but for” his race - i.e., that he was the ‘clearly […]
Sedwick affirms DOL penalty against setnetters employing 13-year old
Two setnetters challenged a U. S. Department of Labor finding that they had illegally employed a minor for two seasons (when he was 13 and 14) in their fishing operations. Judge John Sedwick has affirmed the ALJ’s decision, which imposed a penalty of $11,700 against the employers.
Sedwick […]
Comparative qualifications are irrelevant if the plaintiff fails the prima facie test
If an employer rejects the mostly highly qualified applicant, and that applicant is a member of the protected class, must the case go to the jury? No, says the Alaska Supreme Court - not if the applicant has not met the other criteria for a prima facie case.
Clarito […]
I made my way Sunday to see The Future Is Unwritten, a documentary biography of the late, great Joe Strummer, the lead singer and half the motive force of the iconic punk band The Clash. If you’re a Clash fan or perhaps a Mescaleros fan, you should sprint, not jog, to see this movie, which […]
Gov. Palin selects Dan Winfree to fill Bryner-Rabinowitz seat
Dan Winfree is the 19th Justice of the Alaska Supreme Court. His Biographical Statement to the Judicial Council is as follows:
I’m a third-generation Fairbanksan, born in Territorial Alaska, raised by the Golden Rule and the Code of the North, and encouraged to make a difference.
In 1981, I […]
A profile of the Fairbanks federal judiciary - including Judge Ralph Beistline and Magistrate Judge Terry Hall - appeared in the June 2007 issue of The Third Branch, the publication of the Federal Courts.
H/T: P. Eaglin
Judge Timothy Burgess has ruled against most claims asserted against the Municipality of Anchorage by Fantasies on 5th Avenue, including Equal Protection (both state and federal) and 1st Amendment (vagueness and overbreadth).
The award for attorney creativity goes to the club’s claim that the 4-foot “buffer zone” between a nude dancer and a patron (aka the ”No Touch” rule) violates the Takings […]
The House of Representatives has passed the Attorney-Client Privilege Protection Act of 2007. It bars federal employees from pressuring an “organization or personal affiliated with an organization” to waive the attorney-client privilege or work product privilege.
The bill (HR 3013) provides:
In any Federal investigation or criminal or civil enforcement matter, an agent or attorney of the United […]
An Alaskan appellate judge has written in to correct, and update the information I gave in Tuesday’s post.
According to that judge:
The most recent published Court of Appeals decision in which a superior court judge participated as a pro tempore member of the court was Cooper v. District Court, 133 P.3d 692 (Alaska App. 2006). (Elaine […]
Interviews of Alaska Supreme Court candidates: Gov. Palin interviews Supreme Court candidates in Juneau tomorrow and Friday. The deadline for the appointment to fill Justice Bryner’s seat falls right after Thanksgiving.
SH complaint procedure: Practical tips on drafting an effective sexual harassment complaint policy and procedure may be found at the Pennsylvania Employment Law Blog, and in this article at […]
Practice of designating visiting judges expired in mid-1980’s; former Clerk Robert Bacon provides background
[Ed. Note: See post of 11/15/07 for important corrections and updates to this article.]
For the first 25 years of the Alaska Supreme Court, it was common for a Superior Court judge to temporarily sit on the court to fill a vacancy caused by […]
Court addresses NLRA pre-emption, good faith claims, misrepresentation, and probationary status
The Supreme Court issued an important employment opinion this past Friday. The Court unanimously (per Bryner, with Eastaugh not participating) upheld some, but not all summary judgment rulings by Anchorage Superior Court Judge Mark Rindner.
Plaintiff Willard claimed that Khotol Services Corporation had breached his employment contract, breached the […]
[Mr. Hanley is on remote assignment. He will return next weekend.]
Ethics Opinions, other Supreme Court Opinions
Review of Arbitration Award for Fraud and Partiality: In an Uninsured Motorist case reviewed under the state Arbitration Act, the Supreme Court (per C. J. Fabe) unanimously affirmed the trial court (Wolverton), and held a) the driver (pro se) had failed to show “affirmative wrongdoing” by State Farm and thus […]
The Supreme Court has ordered Barrow Superior Court Judge Michael Jeffery and Anchorage District Court Judge Nancy Nolan to vacate their seats within 90 days, due to their failure to file timely notices re retention.
I. The Statutory Framework for 911 Immunity
AS 09.65.070. Suits against incorporated units of local government
(a) Except as provided in this section, an action may be maintained against a municipality in its corporate character and within the scope of its authority.
. . .
(c) An action may not be maintained against an employee or member of a […]
Judge Sedwick’s 13-page Order and Opinion denying Peter Kott’s acquittal motion is found at U. S. v. Kott, 3:07-cr-00056-JWS (D.Alaska Nov. 8, 2007)(Docket # 285). Among the grounds used by Kott was legislative immunity. Kott apparently cited no case authority for that proposition, and Sedwick quickly disposed of the issue.
About 1000 pages of discussions covering non-competes, FLSA, discrimination, FMLA/ADA, etc. from the current ABA Labor and Employment Law Section meeting in Philadelphia are available, free, here. Navigate to the linked page, and look for additional materials on the sidebar tabs for Volumes I and II.
H/T: Connecticut Employment Law.
The Court of Appeals held this morning that the EEOC may not prosecute Title VII claims on behalf of several of ex-Governor Hickel’s policymaking assistants, Margaret Ward and Lydia Jones (now deceased). The Court (Noonan and Wallace) held that the 1991 Government Employee Rights Act was ineffective to waive the State’s sovereign immunity because it lacked a factual […]
The House of Representatives voted Wednesday on the Employment Non-Discrimination Act (”ENDA,” H.R. 3685), which bans employment discrimination on the basis of sexual orientation. This bill has bipartisan support, and was passed by the House on a vote of 235-184. Rep. Don Young was among the Nays.
This is the first passage by either House of […]
” . . . nor shall any state deprive any person of life, liberty, or property without due process of law. . . .”
14th Amendment, U. S. Constitution
Public employee due process claims involve two primary issues. The first is whether the public employee has been deprived of liberty or property within the meaning of the […]
It’s a disappointment
The Bar Association has introduced Casemaker, a new legal database free to individual Bar members (but costing the Bar Association ca. $30k/year). It’s available here (you’ll need your Log-in and Password).
The Employment Law Section reviewed Casemaker’s features yesterday, with the assistance of Law Librarian Catherine Lemann. Casemaker didn’t make a good initial impression on […]
Employee counsel frequently hear about complaints of sexual harassment from teenage employees at fast food outlets. Today’s opinion by Judge Richard Posner in EEOC v. V & J Foods, Inc., 2007 WL 3274364 (7th Cir. Nov. 7, 2007), offers useful information to both teenage employees and fast food operators.
Complaint procedures for minors: First, Posner discusses the Faragher-Ellerth defense to […]
Materials for Wednesday, Nov. 7th meeting
Here are the materials that Catherine Lemann, State Librarian, will use at this month’s Employment Law Section meeting.
Legal Research, Pt. I; Legal Research, Pt. II; Legal Research, Pt. III
Several dancers have sued Crazy Horse and Fantasies for unpaid overtime compensation, involuntary deductions resulting in denial of minimum wage, impermissible tip pool, and non-receipt of final paychecks. They sued under both the FLSA and AWHA, and seek class certification of both the FLSA (as a collective action) and state (under ARCP Rule 23) claims.
Acting on […]
Grooming policy defeats public policy claim to privacy; unanimous opinion augers poorly for employees
The Court has affirmed the trial court’s (Charles Huguelet) summary judgment for Safeway on Miller’s implied covenant claim that Alaska ’s public policy of privacy protected his right to wear his hair long. In an earlier opinion, the Court had disposed of Miller’s claims based […]
Because I was fortunate enough this past summer to rent a cottage right on the rocky coast of Maine, in view of hundreds upon hundreds of lobster buoys (I was awakened most morning by the sound of lobster boats chugging through Brown’s Cove and pulling traps), it seemed only right to read The Lobster Chronicles, […]
Lemann solicits questions
At the next Employment Law Section meeting, on November 7th, Catherine Lemann, the State Law Librarian, will discuss resources for researching employment law topics.
If you have particular questions about legal research that you’d like Lemann to address, send your questions, by Monday afternoon, to Lemann, here: clemann@courts.state.ak.us
This site will post Lemann’s materials on Tuesday afternoon.
If an employer has an Employment Practices Liability Insurance policy, what event triggers the employer’s duty to notify the insurance company - an oral complaint, an internal grievance, notice of a charge with the EEOC, receipt of a Complaint?
The answer is that it depends on the definition of “claim” in the policy. In a recent […]
Member claims against a union: The 9th Circuit has affirmed judgment against a union under both Title VII and DFR theories.
DFR claim: The Court affirmed a trial court’s findings that a union had breached its duty by failing to file a timely grievance when the union has agreed to do so, and that such conduct substantially injured the […]
Sedwick: No evidence that Sen. Dyson was FBI agent
Judge Sedwick has denied Victor Kohring’s motion to dismiss the indictment on grounds that the FBI used Senator Fred Dyson to interfere with Kohring’s Sixth Amendment rights. Sedwick ruled that the motion was untimely (6 weeks after the pre-trial motion deadline) and lacked merit.
Sedwick found no evidence that […]
