Stoel Rives Labor & Employment News Digest - May 2009


Labor Groups Hail Sotomayor Nomination; Employment Law Record Appears Even-Handed

The biggest labor and employment law story this month is the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. Labor unions couldn't be happier: "Judge Sotomayor is a sound, progressive judge who is blessed with a brilliant legal mind," said United Steelworkers President Leo W. Gerard. Praising her nomination, AFL-CIO President John Sweeney said Sotomayor possesses a "direct and personal understanding of the struggles America's workers endure every day." She's also received glowing recommendations from the SEIU, Change to Win and the Labor Council for Latin American Advancement, just to name a few.

While it's never easy to predict how a nominee will rule once on the Supreme Court (just ask George H.W. Bush how that Souter nomination worked out), early indications are that Judge Sotomayor takes an even-handed approach to employment law issues. In her 16-year career on the bench, Judge Sotomayor has ruled in favor of both employers and employees, and her decisions do not seem to be skewed one way or the other. If you want to know more, click here for a list of Judge Sotomayor's employment law decisions. And, click here to read the World of Work Blog's coverage of the Sotomayor nomination.

Supreme Court Clears Pension Plans That Differentiate Pregnancy Leave Prior to the PDA

This month the U.S. Supreme Court held that an employer does not violate the Pregnancy Discrimination Act (PDA) if it pays pension benefits based in part on pre-PDA calculations that give employees less retirement credit for pregnancy leave than for other types of medical leave. Click here to read the Court's decision in AT&T Corp. v. Hulteen. Click here for an analysis of the case and how it may impact your workplace on the World of Work Blog.

Major Budget Increases for Federal Labor and Employment Enforcement Agencies

Get ready for increased federal enforcement of labor and employment laws: the Obama Administration has released its fiscal year 2010 budget request, and among the items are several increases for the federal agencies that oversee labor and employment matters. Here are some highlights:

Assuming they are passed by Congress, these increases reverse a long trend under the Bush Administration to cut funding to the federal agencies that enforce labor and employment laws. Employers can expect increased enforcement of those laws by the federal government in the years to come.

EFCA Update: Possible Compromises Include "Quickie Elections," Equal Time Provisions

The latest news on the Employee Free Choice Act (EFCA) is a possible compromise in which EFCA's card-check provision is replaced by a "quickie election" procedure—where an election must be held a very short time (one week to three weeks) after the union requests one from the National Labor Relations Board. Another possible compromise provision would be to allow unions equal time with employees if employers choose to hold "captive audience" meetings with employees during a campaign. Both proposals would allow for elections in place of the proposed card-check provision, but would sharply curtail employers' ability to express their views to their employees. To learn more, read our complete EFCA coverage on the World of Work Blog.

EEOC Issues Swine Flu Guidance

Okay, so the swine flu isn't the killer disease from Stephen King's The Stand, but that's no reason not to take it seriously. The Equal Employment Opportunity Commission (EEOC) has issued two helpful resources for employers coping with the swine flu outbreak. First, the EEOC has issued this technical assistance document on ADA-Compliant Employer Preparedness for the H1N1 Flu Virus. It answers basic questions about workplace preparation strategies for the 2009 H1N1 flu virus (swine flu) that are compliant with the Americans with Disabilities Act.

Second, the EEOC has issued this notice on Employment Discrimination and the 2009 H1N1 Flu Virus, reminding employers that the swine flu outbreak is not an excuse to discriminate against employees and potential employees on the basis of disability or national origin. For more swine flu information, check out the World of Work Blog's swine flu coverage.

No Discrimination in Firing Employee Who Used Spit to Remove Expiration Dates

Earlier this month, the Texas Court of Appeals affirmed summary judgment in favor of Frito Lay, Inc. and dismissed the age and sex discrimination claims of a former route sales representative who was fired for using his saliva to remove the "best before" dates from expired products. Click here to read the decision in Cantu v. Frito Lay, Inc. Click here to read more about the case and how it may impact your workplace on the World of Work Blog.

New Senate Bill Would Bar Mandatory Arbitration of Employment Claims

A bill introduced in the U.S. Senate late last month will, if passed, prohibit mandatory, predispute arbitration agreements in employment. Senate Bill 931, also known as the Arbitration Fairness Act of 2009 (AFA), was introduced by Sen. Russ Feingold (D-Wis.) and seven co-sponsors. A similar bill, HR 1020, was introduced in the House of Representatives by Rep. Hank Johnson (D-Ga.) and 36 co-sponsors.

If passed, the AFA will amend the Federal Arbitration Act and will apply only to disputes or claims arising on or after the date of enactment. Why the change? Sponsors and supporters believe that, while arbitration is a good way to settle disputes, predispute arbitration agreements in employment are unfair. For more details, click here to read Sen. Feingold's press release on the AFA.

Exotic Dancers Are Employees, Not Independent Contractors

Every now and then we need a reminder to illustrate the dangers of misclassifying employees as "independent contractors." Last week, the Montana Supreme Court provided such a reminder, ruling that exotic dancers are employees, not independent contractors. Click here to read the opinion in Smith v. TYAD Inc. d/b/a Playground Lounge & Casino. Click here for the World of Work Blog's complete synopsis of the case, with links to the factors the federal government uses to determine whether someone is an employee or a contractor.

More World of Work Available Online

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Contact your Stoel Rives Labor and Employment attorney if you have questions about this or other workplace issues. For a list of attorneys in the Labor and Employment group, click here.

Stoel Rives is a business law firm providing counseling and litigation services to a wide range of clients throughout the United States. The firm has nearly 400 attorneys operating out of 12 offices in eight states. For more information, visit

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