Friday’s opinion by Judge Stephen Reinhardt in Davis v. Team Electric Co. addresses many of the problems confronted by women trying to enter, and to stay in the workforce on construction sites. As you might guess from the identity of the opinion’s author, the results are almost uniformly favorable to the female plaintiff.
Christie Davis worked […]
Judge Timothy Burgess has issued a major (44-page) opinion resolving multiple FMLA issues, including several left open by the 9th Circuit. He also addressed claims under the 1866 Civil Rights Act and the state Whistleblower Act. Burgess granted summary judgment in part for the employee and in part for the employer, Ilisagvik College in Barrow.
Plaintiff Bobbi Wade […]
Jon Hyman at Ohio Employer’s Law Blog suggests that employers consider two ideas less drastic than mandatory arbitration - and less likely to trigger never-ending litigation: contractual waivers of jury trials, and of limitations periods. If successful, the parties would end up with a court trial, brought in a shortened time frame.
Duty to confer typically requires face-to-face meeting
In an excessive force case, Judge John Sedwick has resolved a number of discovery issues that commonly arise in civil litigation, including employment cases.
Defendant’s discovery obligations: Sedwick granted the plaintiff’s motion to discover information about defendant’s insurance policies; other complaints, internal investigation reports, and lawsuits against the officer for excessive force; and training […]
Civil practice tips: This morning’s opinion in Bradley v. Klaes, Op. No. 6242 (Alaska Mar. 28, 2008), contains two reminders about obvious but commonly-seen slips by civil practitioners:
On summary judgment motions, the movant must afffirmatively prove the absence of a factual dispute on any material fact, even if the opponent will not contest the fact. The opponent’s […]
The 9th Circuit has issued a major opinion on Title VII protections for women in the construction industry. The Court (per Reinhardt) has reversed summary judgment for the employer, and, in the course, addressed disparate treatment, retaliation, and hostile work environment claims. Paul Eaglin, from Fairbanks, was the successful pro bono/appointed counsel on appeal. I’ll […]
The California Supreme Court recently ruled that a supervisor could not be held individually liable for retaliation based on sexual orientation, reversing a $155,000 verdict. California state law limits claims for employment discrimination to “employers,” but the same state law prohibits retaliation by “any employer, labor organization, employment agency, or person.” The employee argued that […]
In the last year, there was a 9% increase in federal discrimination charges filed with the EEOC, the largest increase since the 1990s. The increase includes hikes in all types of discrimination charges. Retaliation is the second most common discrimination complaint next to race. There was an 18% increase in retaliation charges in 2007 over […]
The 9th Circuit has held that the phrase “covered employees,” in a CBA (here, a “subscription agreement” for IBEW inside wiremen), unambiguously includes employees hired after the start of the contract but before the union began suppling workers from its hiring hall. Thus, the trial court erred in admitting extrinsic evidence, and, the appeals court held, the […]
Marijuana: The Alaska Supreme Court heard oral arguments in the marijuana/home privacy case, in Juneau, on March 20th. The audio and video are available at Gavel to Gavel. G2G will broadcast the arguments on April 6th at 7:50 pm. The Alaska ACLU is represented by staff counsel Jason Brandeis and two national ACLU attorneys. Allen Clendaniel of […]
The question of whether paralegal services should be valued at cost or at prevailing market rates when determining a fee award to a prevailing party in a suit against the government is now before the U.S. Supreme Court, Richlin Security Service Co. v. Chertoff, No. 06-1717.
Employees of a government contractor were awarded back pay, payroll […]
A California Superior Court ordered Starbucks to pay all California baristas more than $100 million in back tips and interest that the coffee chain paid to shift supervisors. This was a class action with as many as 100,000 baristas in all Starbucks California stores. The Court held that state law prohibited managers and supervisors from […]
Don’t exchange e-mails with your client via the client’s work computer. Chances are good that neither the attorney-client nor the work product privilege applies, if the employer has a modern employee computer use policy. See Scott v. Beth Israel Med. Ctr. Ltd.
H/T: California Wage and Hour Law Blog
The U. S. Supreme Court this morning decided that parties relying on the Federal Arbitration Act for review of an arbitration award can’t force the court to apply a standard different (here, tougher) than that dictated by the FAA. The Court leaves open the possibility that parties could contract for different review standards under the common […]
Recent opinions from the Alaska Supreme Court and the 9th Circuit have questioned the wisdom of the “order of battle” dictated by Saucier v. Katz (2001)(in constitutional tort cases, decide liability first, then qualified immunity). The U. S. Supreme Court has now granted cert and directed the parties to brief whether that part of Saucier should be […]
Retail assistant managers as executives: A recent article by a management-side lawyer sees a trend toward judicial solicitude of employer claims of executive exemption under the FLSA and similar state overtime laws. See Who’s minding the store? from C. R. Wright of Fisher & Phillips. H/T: Washington Labor, Employment & Employee Benefits Law Blog.
The situation under the AWHA is a […]
Parties to employment matters seek to discover income tax returns for several purposes: An employer defendant may want the plaintiff’s returns to see what the plaintiff’s post-termination income has been. Plaintiffs as well as defendants might want the returns of expert witnesses to try to impeach their trial testimony. Friday’s revised opinion by the Alaska Supreme Court […]
In a personal injury lawsuit, Judge Winston Burbank has granted the defendant manufacturer summary judgment based on collateral estoppel arising from entry of a Decision and Order from the Alaska Workers Compensation Board.
The employee/plaintiff had argued that his post-D & O Petition to Modify, and a subsequent Compromise and Release, deprived the D & O […]
Kohring recusal: Here is Kohring’s reply on his post-verdict motion to recuse Judge John Sedwick.
Habeas corpus: The 9th Circuit has affirmed Judge Timothy Burgess’ denial, as untimely, of a habeas corpus petition filed by multiple murderer Loren Larson. Larson claimed pre-deliberation juror misconduct, and relied on juror affidavits. Larson v. Turnbull, 2008 WL _______ (9th Cir. […]
Association claims under the ADA: A 2005 Guidance from the EEOC addresses these questions:
1. What is the association provision of the ADA and to whom does it provide protection?
2. How close does the association or relationship with a person with a disability have to be for an individual to be protected by the association provision?
3. […]
U. S. Supreme Court: pro-business?: In Sunday’s NYT Magazine , Jeffrey Rosen argues that the U. S. Supreme Court is pro-business. Ilya Somin, at The Volokh Conspiracy, argues that the Court is, at best, mildly pro-market, and accords property rights second-class and economic liberties third-class status.
Oral argument in gun case : This morning’s oral argument in District […]
“Employee” in EPLI policy: Where the employer-defendant reimbursed a third party for an individual’s work, the individual is not the “employee” of the employer-defendant for purposes of ELPI coverage when the policy defines “employee” as “any person who receives wages or a salary from the Entity for work that is directed and controlled by the […]
Alaska Title 36 provides that 90 % of employees on a state-funded public contract must be Alaska residents, but also allows a contractor to obtain a waiver for a specific position. The waiver is only prospective, and can’t exceed six months.
The state Department of Labor has now amended WHPL # 201 to conform to “recent regulatory […]
The plaintiff Personal Representative claimed that a village police officer had caused the death of the decedent by using excessive force - a bear hug and a “take down.” The police officer claimed qualified immunity, presumably under AS 09.65.070. Judge Michael Jeffery entered summary judgment for the officer. On appeal, the State of Alaska filed […]
Classified Employees Ass’n v. Matanuska-Susitna Bor. Sch. Dist., S-12606, argued Feb. 14, 2008
After custodial workers lost their jobs when the school district outsourced their work to a private contractor, CEA filed a grievance arguing the outsourcing was a contract violation. The District refused to arbitrate the grievance, claiming it has the unlimited right to privatize […]
A police detective secretly video-taped several officers’ locker room, investigating the theft of a flashlight. The Ninth Circuit now holds that the officers had both a subjective and objective reasonable expectation of privacy, and that no reasonable supervisor could have believed that the search was constitutional. The detective, thus, had no immunity to a damage claim […]
The City of Woodburn, Oregon, requires conditionally-accepted candidates for any position to take a pre-employment drug test. A finalist for the position of part-time library page challenged the requirement under the Fourth Amendment. The 9th Circuit has now upheld the invalidation of the policy, not facially, but as applied to this plaintiff.
The Court of Appeals held […]
Today’s Wall Street Journal (03/12/08 A-3) carries an article about “dubious information” in files of mortgage lender Countrywide Financial Corp., and illustrates the issue by reference to a criminal prosecution in Alaska. The case is U. S. v. Kourosh Partow, 3:06-cr-00104-HRH. Partow pleaded guilty, and Judge Holland, on August 24, 2007, sentenced the former lending company […]
In deciding a motion for summary judgment in a section 1983 action we are bound to look first to whether there was a constitutional violation and then to whether defendants have qualified immunity, even if the qualified immunity inquiry would resolve the case more easily. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Meyers, […]
It is well-settled Supreme Court law that an EEOC right-to-sue letter is not a jurisdictional prerequisite to a Title VII action. It’s a conditional precedent that may be waived by the parties or the court. Zipes v. TransWorld Airlines, Inc. 455 U.S. 385 (1982). In this morning’s case, the ex-employee filed with the state (California) […]
In the false arrest case previously discussed, Judge John Sedwick has rejected the Municipality of Anchorage’s motion for reconsideration, supported by new affidavits from police officers. Under 9th Cricuit law, reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the intial decision was manifestly unjust, or […]
NLRB v. Katz, 369 US 736 (1962), says that an employer may not unilaterally alter working conditions once it starts bargaining for the initial CBA. Do employers governed by the Railway Labor Act have the same duty? The 9th Circuit this morning says, No.
This appeal presents the question whether section 2, First of the Railway Labor […]
For more about the 48 Hours (CBS) segment on the Mechele Linehan case, attorneys Pat Gullufsen and Kevin Fitzgerald, et al., go here.
Judge John Sedwick has held that the work product privilege protects documents created in anticipation of litigation by non-attorneys working for attorneys, as well as by attorneys themselves. Here, while the privilege log did not indicate that an attorney was the intended recipient of the documents created by DLCA’s staff investigator, the Court relied on […]
Have trouble sometimes remembering the eighth and ninth U. S. Supreme Court justices? Try “Three Kinky Southern Girls Bring Rock Star Scandals Aplenty.” From Exploring Constitutional Law.
The mnemonic for the planets (from the Sun out) is “My Very Educated Mother Just Served Us Nine Pizzas.”
ERISA preemption: The Court (per J. Matthews, with Fabe and Bryner not participating) affirmed Judge John Suddock’s judgment for two non-participants who sued their employer and a Trust Fund for negligently representing that they were were, in fact, participants in the health trust fund. Suddock, in a court trial, awarded the employees $56,000 for net medical costs […]
The American Prospect carries an article by Simon Lazarus and Harper Jean Tobin on Justice Scalia’s “war” on employee rights.
H/T: How Appealing
John Phillips at The Word on Employment Law has posts on the positions of the three contenders on immigration, healthcare, the Supreme Court, the FOREWARN Act, the Fair Pay Restoration Act, the ADA Restoration Act, the 2008 Civil Rights Act, and the Employee Free Choice Act.
No duty to repay advance on sales commissions: According to a recent Connecticut Supreme Court decision,
the majority of the jurisdictions applies the general rule that if no express or implied contract for repayment is established, the employee is not liable to the employer for repayment of advances that exceed earned commissions. . . . In […]
Coverage of the trial of the State’s lawsuit against Lilly, in front of Judge Mark Rindner, may be found in today’s New York Times and the Associated Press, as well as the Daily News.
Our Hero Judge Alex Has a Bad Day in Court (Two New U.S. Supreme Court Opinions)
On February 20, 2008, the United States Supreme Court issued two opinions of interest to employers and businesses. This summary briefly reviews the opinions and their respective significance.
Judge Alex Gets Reversed: Effect of Arbitration Provisions on State Administrative Actions
In Preston […]
Here are some further thoughts on Tom Daniel’s excellent presentation to the Employment Law Section yesterday noon.
Limits on public employment contracts: Zerbetz v. Alaska Energy Center, 708 P.2d 1270 (Alaska 1985), addresses the permissible terms in an employment contract with a public entity. In Zerbetz the Court held that the statutory authority to “employ” a Director […]
A federally-subsidized housing authority has no duty to reasonably accommodate a tenant’s medical marijuana use. Furthermore, the panel held,
[b]ecause the Plaintiffs’ eviction is substantiated by Assenberg’s illegal drug use, we need not address his claim that his snakes qualify as “service animals” or whether [the housing authority] offered a resonable accommodation.
Assenberg v. Anacortes Housing Authority, […]
We earlier mentioned Sen. Obama’s primary employee rights bill - the Independent Contractor Proper Classification Act of 2007. It has not been enacted.
Sen. Clinton’s claim on employment law is the Employee Free Choice Act of 2007. The bill would eliminate NLRB elections where a majority of the barganing unit had signed cards for a union and […]
State wage claims in Bankruptcy Court: Bankruptcy Judge Donald MacDonald has refused to reconsider his earlier determination that creditor Robert Edelen was an independent contractor, not an employee of the debtor. MacDonald found “persuasive” a letter from the state Wage and Hour office.
In re Baxter, 2008 WL 544916 (Bankr.D.Alaska Feb. 25, 2008).
Pollution at the Red Dog […]
The Judicial Conference Committee on Judicial Conduct and Disability has issued two opinions about judges within the 9th Circuit, at least one of whom is District Court Judge Manuel Real of Los Angeles. H/T: How Appealing
Tom Daniel will present at this Wednesday’s meeting of the Employment Law Section. See here for his materials on Alaska Due Process.
The recently-publicized report by the Alaska Department of Health and Social Services about workers exposure to lead is found here.
The seven-page Factual Basis for Plea sets out just that. It is signed by James Clark and his attorney, Bruce Gagnon. The local AUSAs are Joseph Bottini and James Goeke.
U. S. v. Clark, 3:08-cr-0023-JWS (D.Alaska Mar. 3, 2008)
New Guidance from the United States Supreme Court
Introduction
In an opinion that the Court frankly admitted was “unfortunate,” the United States Supreme Court issued an opinion last Wednesday, February 27th, in which it held that an EEOC intake questionnaire could qualify as a “charge” even though EEOC never treated the intake questionnaire as a charge and the […]
Judge Ralph Beistline has held that the City of Seward violated the Clean Water Act by failing to apply for a National Pollution Discharge Elimination System permit concerning discharge of storm water into its harbor. In the course of reaching that conclusion, Beistline rejected standing challenges to plaintiffs Resurrection Bay Conservation Alliance and Alaska Community Action […]
The Board of Governors of the Alaska Bar Association on January 31st adopted the Opinion of the Ethics Committe as follows:
Simply because a lawyer may keep electronic records of his or her own business records, that does not mean the lawyer is free to discard “original” records. Rule 1.15 requires the lawyer to safeguard and […]
Introduction
The United States Supreme Court issued a new opinion last Tuesday addressing evidentiary standards in employment discrimination cases, Sprint/United Management Co. v. Mendelsohn. This summary briefly reviews the case and its significance.
The Case
Mendelsohn filed an age discrimination claim after she was laid off during a reduction in force. She sought to introduce evidence that other employees […]
The state Labor Department has issued a revised WHPL # 143, on the service of Cease and Desist Orders for employees (such as plumbers or electricians) lacking a required Certificate of Fitness.
The Department has also corrected the dating for WHPL # 204, concerning Title 36 hourly and fringe benefit rates. See earlier AEL analysis.
For some reason I recently bought the “Gold Box” 10-DVD set of the complete Twin Peaks televised drama. The box contains the complete 2-hour pilot, the complete international pilot (careful, the international pilot has spoilers, so wait until you watch the whole series), and all 29 episodes that were broadcast over seasons 1 and 2, […]
