Alaska Employment Law

The EEOC issued a helpful “informal discussion” letter on employer use of conviction records on March 27, 2008.
Thanks to Delaware Employment Law.

Here’s the new I-9 form that employers must use as of July 1, 2008, tomorrow.

Bryan Frye, law clerk for Judge Andrew Kleinfeld in Fairbanks last year, wrote a law review article cited by Justice Scalia in his majority opinion in the Second Amendment case.  WSJ Law Blog covers the story.  More at Volokh Conspiracy.
H/T: Sarah Schendel

Does federal law prevent a prevailing employer from recovering attorney fees against an employee who files under a ”little Title VII” law?  The 9th Circuit says Yes, if the state law is at least as employee-protective as Title VII. 
A violation of the federal ADA constitutes a violation of the CDPA [California Disabled Persons Act]. See, e.g., Cal. Civ. […]

In a Ninth Circuit opinion published this morning, the issue was:
Whether the FMLA allows a plaintiff to recover damages for absences from work [i.e., lost wages] that were caused by an emotional condition that itself resulted from the employer’s wrongful denial of FMLA leave.
The 9th Circuit agreed with prevailing caselaw that an FMLA plaintiff may not […]

The 9th Circuit will hold oral argument in Anchorage August 4 - 7, 2008.  Here’s the Calendar for those four days.  The panel members will be disclosed about a week before the first argument.

We reported on June 3rd that a member of the GGU unit of ASEA had challenged the union’s rules on resignation of membership.  The parties have now settled the matter, on undisclosed terms.

Introduction
On June 19, 2008, the United States Supreme Court issued its opinion in Metropolitan Life Insurance Co. v. Glenn, holding that a plan administrator’s conflicts resulted in the invalidation of its decision to deny benefits.   
The Case
Metropolitan Life Insurance (MetLife) is both the insurer and plan administrator for Sears’ long-term disability plan. MetLife had authority as […]

We discussed this topic back in February.  Now Mitchell Rubinstein has published an article on the issue, at 29 Berkeley J. Emp. & Lab. L. 221 (June 2008).  
The abstract of the article follows: 
Whether a full labor relations privilege is developing is one of the most interesting as well as difficult aspects of labor law and the law […]

Introduction
The United States Supreme Court issued its long-awaited opinion in the Exxon Valdez opinion today. This summary briefly reviews the case and its significance.

The Case: Issues and Arguments before the Court
Exxon raised three issues before the United States Supreme Court: (1) that punitive damages could not be awarded in maritime law for acts or omissions […]

In this morning’s opinion in Exxon Shipping v. Baker, the U. S. Supreme Court limited punitive damages to $507.5 million, the same as compensatory damages.  The Court set a new 1:1 limit for punitive damages:compensatory damages in maritime cases.

Introduction
The United States Supreme Court recently struck down a California law purporting to prohibit employers receiving state funds from using any of those funds to assist, promote, or deter union organizing. The case is Chamber of Commerce v. Brown. This summary briefly reviews the case and its significance.

The Case

California passed Assembly Bill 1889, a law […]

May the EEOC issue a Right-to-Sue letter before the 60-day conciliation period expires?   If so, may the charging party still amend the charge within the remainder of the 60-day period?  A 9th Circuit panel says, says Yes, and No. 
Several of the plaintiffs had sued after the expiration of the 90-day period, and argued that their […]

Jon Hyman at Ohio Employer’s Law Blog has a summary of Barack Obama’s recent statements on changes he’d like to see in federal employment law, including mandatory paid sick leave, lower threshold for FMLA, increased child care tax credits, and reversal of the Ledbetter decision.

Jerome Juday writes for The Alaska Law Blog, sponsored by Atkinson, Conway &  Gagnon, Inc. in Anchorage.  His current column starts this way:

Confessions Of A Hipster Doofus

Look, I’m willing to admit it. It’s nothing to be ashamed of, not really. Just because most everyone else does not feel this way is no reason that I should […]

The state AFL-CIO has endorsed Mark Begich over Ted Stevens.  The labor organization’s home page says nothing about it, yet, but the Anchorage Daily News confirms here.

The 9th Circuit has affirmed a Title VII jury’s verdict that the City and County of Honolulu did not racially discriminate against a bassoonist who auditioned for a position with the Royal Hawaiian Band. 
The plaintiff’s attempt to demonstrate his skills to the jury failed:

First, [plaintiff] objects to the district court’s grant of the City’s Motion in Limine No. 3, […]

When your dog or cat (or bird or guinea pig or snake) is hurting, it’s easy to feel bad for the poor creature. Ever had to take your pet to the hospital? – not fun. Dr. Nick Trout, a veterinary surgeon at Angell Animal Medical Center in Boston, writes about his job in Tell Me […]

In an unpublished order issued yesterday, the Alaska Supreme Court addressed the powers of a guardian of a ward whose physicians proposed to withhold lifesaving procedures.  The Office of Public Advocacy had taken the position that it “does not participate in end-of-life decisions for any of its clients.”  The Court construed AS 13.26.150(e)(3) to require a […]

Introduction
The United States Supreme Court issued an opinion yesterday, June 19, 2008, in Meacham v. Knolls Atomic Power Laboratory addressing the burden of proof on establishing reasonable factors other than age (”RFOA”) in Age Discrimination in Employment (”ADEA”) cases. This summary briefly reviews the case and its significance.

The Case

This is actually the second time that […]

Introduction
The United States Supreme Court issued an opinion yesterday, June 19, 2008, in Kentucky Retirement Systems v. EEOC in which the Court reversed an en banc panel of the Sixth Circuit, and held that Kentucky’s retirement plan did not violate the Age Discrimination in Employment Act (ADEA) even though it used age as a factor, […]

The FLSA offers a “safe harbor” for employers who inadvertently make impermissible deductions from the salaries of exempt employees, and for employers who pay non-exempt employees on a fluctuating workweek basis.  Management-side law firm Jackson Lewis has drafted and published two sample policies to protect the employer.  You can find them here. 

A recent order from Judge Timothy Burgess illustrates a tool the District of Alaska uses to manage some pro se litigation.  Without prompting by the other side, Burgess advised a pro se plaintiff in a Section 1983 case that he had failed to identify any federal right, advised him of the possibility of an adverse award of attorney fees, […]

The 9th Circuit has held that public employees enjoy a constitutionally-protected reasonable expectation of privacy in the content of text messages they send over employer-provided pagers, even if the employer has promulgated a no-privacy rule, if the employer also has an informal policy of not auditing the content.  Here, while the author of the informal […]

The National Labor Relations Board has issued a Memorandum that lays out the Board’s policy regarding mitigation of damages. 
Here’s the summary:

On September 11, 2007, the Board issued its decision in Grosvenor Orlando Associates, LTD., d/b/a The Grosvenor Resort, and its general partners Grosvenor Properties, Ltd., Donald E. Werby and Robert K. Werbe, 350 NLRB No. […]

U. S. District Court Judge John Sedwick has denied two defense in limine motions in the window blind strangulation case reviewed here yesterday. 
In his first order, Sedwick permitted plaintiffs to call Dr. Jon Jacobson, a multi-degreed professional engineer, to testify on the adequacy of a trade association safety standard.  Sedwick rejected defense objections based on a) […]

The estate and family of a child sued a trade association for adopting a deficient industry safety standard that, they allege, led to the strangulation death of the child.   Judge John Sedwick has now addressed the association’s summary judgment motion arguing that the association had not assumed a duty of care. 
Sedwick denied the association’s motion, […]

In the course of criticizing a District Court’s review standard for an ERISA decision, a 9th Circuit panel stated:

That construction of the standard was plainly wrong, obnebulated the whole process, and failed to constitute “an independent and thorough inspection of [the] administrator’s decision.”

Ermovick v. Mitchell Silberberg and Knupp LLP Long Term Disability for All Employees, 2008 WL  2415728 […]

The 9th Circuit has confirmed that an ADA plaintiff needn’t submit comparative evidence to establish “impairment,” at least to survive summary judgment.  The case involved a UPS driver whose heart condition made him dizzy in hotter temperatures.  The District Court granted UPS summary judgment because the employee failed to present evidence of general population characteristics.  
The […]

The 9th Cricuit has rejected a public policy challenge to an arbitration award that reinstated employees who received “no match” letters from the Social Security Administration.  The panel affirmed an arbitration award that found that the employer had not knowingly employed undocumented workers. 
The court summarized the “public policy” defense to an arbitration award as follows: 
“To […]

Lewis Black performed at Boston’s Opera House May 8. I am a great fan of Lewis Black, whose humor is fueled by his vituperation at pretty much everything. He yells, he rants (intellectually), he occasionally storms around the stage. He gives the f-word a terrific workout. Then, pausing, he sits quietly and drinks bottled water while […]

An applicant concealed a criminal conviction in his 2005 application to take the psychological associate exam, and was therefore barred from the exam.  When he re-applied in 2007 and was truthful but still was denied the opportunity to take the exam, he appealed. 
The Alaska Board of Psychologist and Psychological Associate Examiners has now affirmed the denial […]

Sometime next week the Alaska Office of Administrative Hearings should start electronic publication of agency opinons, including those from the Human Rights Commission and the various occupational licensing bodies. 
In the meantime, here are summaries of the most recent (significant) OAH opinions from the Human Rights Commission.  The full opinions are available through a Public Records […]

Judge John Sedwick has held that Alaska’s “revocation-upon-divorce” statute, AS 13.12.804(a)(1)(A), creates a rebuttable presumption of revocation.  He also held that the insured’s post-divorce statement of intent not to change the designation of his ex-wife as beneficiary sufficed to rebut the presumption and survived a Statute of Frauds objection.
 State Farm Life Ins. Co. v. Davis, […]

Alaska employers, big and small, often try to bar their employees from discussing their wages.  This practice has been illegal for years (since at least 1992), as the NLRB recently emphasized:
[A]n employer rule which regards employee compensation and benefit information as confidential and prohibits employees from discussing such information with one another violates Section 8(a)(1) […]

A recent 9th Circuit opinion (unpublished) reminds that a non-compete agreement with an unqualified lifespan underprotects the employer.  Rather, the agreement should expressly provide that term of the non-compete covenant will be extended by the period of time that a court or other forum determines the ex-employee has been in breach of the agreement.  

Introduction
The United States Supreme Court issued a new opinion on June 9, 2008, addressing the so-called “class of one” claim in the context of public employment law. This summary briefly reviews the opinion and its significance.

The Case

Anup Engquist worked for the Oregon Department of Agriculture. Following a layoff, she filed suit alleging employment discrimination and […]

Sedwick: HIPAA isn’t part of Rule 26 balancing 
Judge John Sedwick has ordered a plaintiff to disclose ten years of broad medical and psychiatric information in a garden-variety PI case.
Eli Garnish injured his hand and arm in an industrial accident aboard a ship.  He sued, alleging negligence and unseaworthiness, and sought 
recovery for physical injuries, present and future medical expenses, […]

Ninth Circuit Chief Judge Alex Kozinski has appointed a three-judge panel to hear the Bethel case alleging that Alaska violates the Voting Rights Act by, for instance, not supplying Yupik translations of election materials.  The members of the three-judge panel will be Margarent McKeown from the 9th Circuit, and Timothy Burgess and James Singleton from […]

Catching up on baseball: it was my good fortune several weeks ago to stay in Pittsburgh right across the river from PNC Park, home of the Pittsburgh Pirates. Here, a note: If anything bad ever happens to Fenway, I recommend that the citizens of Boston go to Pittsburgh and liberate PNC Park from an inept but […]

In holding that the plaintiff and another applicant were not “similarly-situated in all material respects,” the 9th Circuit relied, in part, on the fact that the other applicant was a friend of the decisionmaker:
Dove also failed to establish a prima facie <case because he could not show that similarly situated individuals not in his protected class […]

The State of Alaska’s Office of Administrative Hearings will post final decisions made by its Administrative Law Judges.  Starting the week of June 16th, OAH will place on the Web over 100 recent opinions arising from occupational licensing bodies and the Human Rights Commission, as well as PFD, tax, and child support matters.  According to Chief Judge Terry […]

A State of Alaska employee has challenged the union security clause of the ASEA contract.  Robert Hunsick, a member of the General Government Unit, claims that the Alaska State Employees Association restrained his attempt to resign as a union member, and collected more than true agency fees. 
The ASEA/State contract provides a June 1-June 31 window […]

Boy Scout camp as exempt private club under ADA Title III:

The complaint alleges . . . that Troop 223 “offers recreational and educational opportunities” to preteen boys and their families at Camp Emerald Bay. As the district court acknowledged, this suffices to suggest that Camp Emerald Bay may be a place of recreation or education covered by […]