The Alaska Supreme Court on February 22nd declined to accept the question certified by Judge Beistline in Johnson v. Fred Meyer Stores:
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 to replace her with someone with whom […]
U S Department of Labor has provided a downloadable insert for the employer-required FMLA poster, concerning the recent military-related amendments.
H/T: California Employment Law
Two recent § 1983 opinions address immunities in employment areas.
Licensing investigator: The 9th Circuit today held that an investigator for a state licensing board is not shielded from damages claims by absolute immunity. The panel also held that business goodwill is a constitutionally protected property right that has been clearly established.
Lantz v. Crate, 2008 WL _______ (9th Cir. Feb. 27, […]
Lyle Denniston at SCOTUSblog listened, and says:
If the Supreme Court voted immediately in the huge oil spill case heard on Wednesday, and voted the sentiments the Justices expressed throughout 90 minutes of oral argument, this might well be the outcome: Exxon Mobil Corp. and its shipping subsidiary may well have to pay some punitive damages, but […]
The Supreme Court has issued its opinion in the FedEx/Holowecki case on the definition of a “charge” under the Age Discrimination in Employment Act. Employee wins; EEOC gets deference. Kennedy writes; Thomas and Scalia dissent. Commentary by Paul Mollica and Paul Secunda.
I admire Richard Posner’s opinions as pieces of literature, essays on legal issues. It doesn’t matter if it’s a reorganization or a reinsurance case; I just enjoy his style. No summary of facts, followed by a standard of appellate review, and then a Roman-numbered catalogue of issues and sub-issues. Posner works the facts into a narrative that […]
The Supreme Court has unanimously reversed the 10th Circuit in the Sprint “Me, too” evidence case. Here’s commentary by Paul Mollica, and by Paul Secunda at Workplace Professor.
Sen. Obama introduced S. 2044, the Independent Contractor Proper Classification Act of 2007, in September of 2007. Co-sponsors are Boxer, Clinton, Durbin, Kennedy, Mikulski, and Murray.
S. 2044 would
* eliminate the statutory ban on IRS issuing regulations or revenue rulings on employee/independent contractor status;
* eliminate the employer defense of reliance on industry practice;
* […]
Oral argument is tomorrow morning. The amicus brief of the Alaska Federation of Natives, RurAL CAP, the North Slope Borough, etc., authored by Carol Daniel, David Case, and others, is here.
All briefs by parties and amici may be found at the SCOTUSblog wiki.
Frivolous litigation
HB 349 (Chenault), if passed, would amend Civil Rule 82(b) and Appellate Rule 408(e) [and codify both] to authorize fee awards against attorneys and parties who defend, as well as prosecute “frivolous litigation,” including cross-appeals as well as appeals. The bill is in Judiciary Committee.
SB 226 (Judiciary Committee) is a more ambitious bill, and apparently one […]
Must a union divulge its evaluations of possible grievances, or its bargaining committee’s notes, when they are relevant and are demanded by an adverse party?
Say the employer in an arbitration suspects that the union is processing a discharge grievance over the objection of fellow employees. Can the employer demand copies of the union grievance committee’s minutes […]
An Alaskan who has filed an EEOC charge against the Salvation Army’s Clitheroe Treatment Center on Bragaw in Anchorage has created a fancy website (and bought ads on other web sites) to publicize his or her complaints of discrimination.
02/25/08 Update: You can see the employee’s Google Ad on today’s Talking Points Memo.
Caps on mandatory overtime for nurses: CSSB 28 (B. Davis) would set caps on mandatory overtime (generally 80 hours in a 14-day period, though with multiple exceptions), and establish an enforcement process in the Department of Health and Social Services.
Political expenditures by public unions: SB 77 (C. Bunde) would prohibit public unions from using agency […]
Rep. Mike Kelly (R-Fbx) on February 19th introduced HB 391, which parallels SB 276, discussed several days ago. The bills would, if enacted, give each individual employee working on state-financed PLA’s (including the natural gas pipeline) the option of directing his or her fringe benefit contributions to either the current employer’s plan, another employer’s plan, or the plan […]
Homer Elect. Ass’n & IBEW Local 1547: Arbitrator Robert Landau held that HEA violated the Working Rules in the Outside Agreement when it allowed a substation technician to test a voltage regulator outside the presence of a journeyman lineman. Landau relied on bargaining history.
124 LA 696 (Nov. 2, 2007)
In-house counsel Bill Wielechowski represented the Local. Donald […]
Yesterday the U. S. Supreme Court issued its opinion in Preston v. Ferrer, in which it held that questions about the validity of a contract with an arbitration clause belong before the arbitrator rather than a judge or administrative agency, despite state law to the contrary.
The Court also held that ERISA § 402(a)(2) permits a 401(k) participant […]
Senators Lyda Green and Con Bundy have introduced SB 276, which would give each employee working on certain Project Labor Agreement sites the option to receive fringe benfits from either his or her current employer, another employer of the employee, or the union that negotiated the PLA.
SB 276 would apply to AGIA and to PLA’s under Title […]
Gov. Sarah Palin has appointed Paul Lyle from the Fairbanks AG’s office to replace Niesje Steinkruger on the Superior Court for the Fourth Judicial District.
Lyle’s biographical statement reads:
Paul Lyle has lived in Fairbanks for 27 years. He graduated in 1975 from Temple University with a B.B.A. (magna cum laude) and received his J.D. from Temple University […]
State adopts federal rule; OT problems may result
Effective February 8, 2008, the Alaska Department of Labor revised the Little Davis-Bacon Act formula in a way that conforms to the federal Davis-Bacon formula, gives Title 36 contractors greater flexibility in dividing up the total wages, but may also cause mistakes in the calculation of overtime compensation. WHPL […]
The Supreme Court this week agreed to resolve issues related to a) CBA-compelled arbitration of statutory discrimination claims; b) agency payor responsibility for union litigation expenses; and c) ERISA’s anti-alienation provision.
You can find blog commentary at Workplace Professor and Daily Developments in EEO Law (02/19/08 post).
This week the U. S. Supreme Court will hear arguments in two employment cases, both centered on statutory interpretation issues involving retaliation claims.
Tuesday, the case is Gomez-Perez v. Potter, and the issue is whether the ADEA prohibits federal employers, as well as private employers, from retaliating against employees who complain of age discrimination.
02/19 & 20/08 Update: Post-argument commentary on Gomez-Perez: […]
Attorneys for Doyon, Limited, the ANCSA corporation for the Interior, have issued a cease and desist letter to the group “Friends of Doyon” in connection with proxy solicitations for upcoming Board of Director elections. The letter, signed by Lisa Osman of Dorsey & Whitney’s Denver office, argues that the group has infringed Doyon’s common law and registered trademarks […]
Court denies State’s request to argue
From SCOTUSBlog:
The Supreme Court on Friday agreed to expand the time allowed for oral argument in Exxon Shipping Co. v. Baker (07-219), scheduled for Wednesday, Feb. 27. That is the only case scheduled to be heard that day. In an order Friday, the Court allotted 45 minutes to each side […]
The Juneau School District defendants continue to try to collect $4,961.67 in court-awarded costs from the student who sued in the Bong Hits 4 Jesus case that went to the U. S. Supreme Court. Federal Magistrate Judge Mary Guss has now granted the defendants’ Motion to Compel and ordered plaintiff Joseph Frederick to answer Interrogatories and to respond to […]
Thirteen attorneys have applied to fill the position to be vacated by David Stewart. The applicants are Joel Bolger, Susan Carney, Ken Diemer, James Fayette, Patrick Gullufsen, Kevin McCoy, Douglas Moody, Colleen Moore, Wayne Anthony Ross, Jack Smith, Rick Svobodny, Timothy Terrell, and Mark Wood. Their biographies may be found at the website of the Judicial Council.
Judge Timothy Burgess forcefully drew counsel’s attention to proper citation style in this Minute Order, yesterday:
On January 11, 2008, the defendant, Brown Shoe Co., moved for reconsideration of this Court’s order denying summary judgment as to the issue of race-based discrimination. Defendant’s citations to the record, however, are not in accordance with this Court’s rules. […]
E-discovery in Alaska state courts: Friday, Feb. 29th, is the deadline for comments on the proposed changes to Alaska Rules of Civil Procedure 16, 26, 33-34, 37, and 45, concerning electronic discovery. According to the Rules Clerk, the changes mostly conform the state rules to the Federal Rules.
Posting OAH Decisions: Chief Judge Terry Thurbon of the state […]
With the assistance of attorneys Ken Roosa (for plaintiffs), Bob Groseclose (for the Catholic Bishop of Northern Alaska), and Dan Quinn (for the Jesuit Provinces of Wisconsin and New Orleans), AEL will post trial court rulings in the cases alleging sexual abuse by Catholic Church clergy and volunteers.
Here are:
Judge Ben Esch’s December 23, 2005, Memorandum and Order on fraud, negligent […]
Employment Practices Liability Insurance: The basics of EPLI are covered today at Pennsylvania Employment Law Blog. Connecticut Employment Lawyer Blog adds commentary. EPLI covers claims that General Liability carriers usually try to exclude. See next item.
Employment-claim exclusion: The 9th Circuit has affirmed a judgment holding that the General Liability insurer succeeded in excluding employment-related claims:
The straight-forward organization of […]
FMLA regulations on military families: US DOL has published 470 pages of proposed regs and commentary on FMLA leave for employees with military members and other subjects. The comment period expires April 11th. See Connecticut Employment Law Blog for links to the regs and to blogger summaries of the regs.
Alaska National Guard pay: HB 326 would amend […]
The regulations that the Alaska Department of Labor proposed back in November of 2006 will become effective March 2, 2008.
An analysis of the proposed regulations appeared here last September. The final regs differ from the proposed regs only in minor grammatical or editorial aspects.
Attorney Jack McGee of Juneau has filed a brief in support of individual 2d Amendment rights in the District of Columbia case in front of the U. S. Supreme Court. McGee’s clients are the Alaska Outdoor Council, Alaska Fish and Wildlife Conservation Fund, Sitka Sportsman’s Association, Juneau Rifle and Pistol Club, Juneau Gun Club, and Alaska […]
The 9th Circuit has affirmed Judge John Sedwick’s judgment for Lloyds of London, holding
1) the doctrine of uberrimae fidei (”the utmost good faith rule”) is a judicially-established federal admiralty rule that applies to marine insurance;
2) vessel pollution insurance is a form of marine insurance; and
3) on their application for insurance, the vessel owners failed to […]
Mitchell v. Teck Cominco Alaska, Inc., S-12530, argued Jan. 14, 2008
Mitchell asserts [his firing] by his employer was racially motivated. The trial court found that Mitchell committed sexual harassment, although Mitchell claims he only requested a mutual acquaintance for an introduction to the woman.
Trial judge: Erlich
Counsel: Ken Legacki; Sean Halloran
Alford v. State, Dept. of […]
Stevens-Murkowski-Young brief in Exxon appeal
In the Alaska Delegation’s amicus brief to the U. S. Supreme Court in support of the Exxon Valdez plaintiff class, this citation appears (fn. 2 on p. 8):
For an extended historical discussion of the relationship between maritime and common law, see generally Theodore F. Stevens, Erie R.R. v. Tompkins and the Uniform General […]
The Alaska Supreme Court this morning unanimously (per J. Eastaugh) affirmed the Human Rights Commission’s dismissal of an applicant’s age and race claims. The Court held that the applicant failed to present a prima facie case because he didn’t show that he met the preferred qualifications for the HR position (5-10 years of HR/labor experience). The […]
The U. S. Department of Labor today sued the corporations who run the two Anchorage Red Robin restaurants (on East Dimond and Penland Parkway) for violating the overtime provisions of the FLSA. DOL has also sued the sole shareholder of the two corporations, as a “joint employer.”
Chao v. Red Robin Alaska, Inc., et al., Case No. 3:08-cv-00017-JWS (D.Alaska).
It’s a good news, bad news story, without much good news for employees, especially unrepresented employees in front of repeat arbitrators:
From the abstract by researcher Alexander Colvin:
Whereas past research often concluded based on more limited datasets that outcomes from employment arbitration were generally similar to those from litigation, results of the present study, which is […]
Judge Russel Holland has “decline[d]” Judge Sedwick’s request to resolve Victor Kohring’s recusal motion, holding that Sedwick must resolve it himself. Holland distinguished between recusal motions based on 28 USC § 144 (where a different judge must resolve challenges based on “personal bias or prejudice”) and challenges based on 28 USC § 455 (where the sitting judge […]
11th Am’t immunity for private entities: Private entities who contract with the state to perform governmental services are not entitled to 11th Amendment immunity. Del Campo v. Kennedy, 2008 WL 320772 (9th Cir. Feb. 6, 2008).
Recusal: Judge Sedwick’s Order on Victor Kohring’s recusal motion is here. The Order contains Sedwick’s response to Kohring’s allegations, as well as the referral […]
The February 6th meeting of the Alaska Employment Law Section will conclude the Ethics discussion started in December, and will include a short review of the following issue: May defense counsel contact members of a certified class in the interval between certification of the class and distribution of the opt-out notice?
Shortly after certification of an action […]
Fairbanks Superior Court Judge Randy Olsen has now affirmed ALRA Decision & Order 282 (Sept. 26, 2006). The ALRA had found that the City of Fairbanks did not commit an unfair labor practice when its Mayor failed to advocate that the City Council fully fund the CBA with its firefighters union. Judge Mark Wood had earlier […]
A 9th Circuit panel (including Pregerson and Bea) has unanimously reversed Judge Manuel Real on a host of state law claims that Real erroneously held were preempted by § 301. The panel held that the employee’s claims for public policy wrongful termination, fraud, age discrimination, IIED, and NIED did not require interpretation of the CBA, and […]
Judge Timothy Burgess has now published his earlier decision in which he rejected claims by a resident of Chugiak Senior Center that the Center’s failure to provide services greater than “assisted care” discriminated against the resident on the basis of her alleged disabilities. The resident had pursued claims under the Alaska Assisted Living Homes Act, […]
