Senators Durbin (D-IL) and Obama (D-IL) announced in a recent Chicago Sun-Times op-ed that they have introduced the Independent Contractor Proper Classification Act of 2007 (S. 2004). Their op-ed cites a study that claims that hundreds of millions of dollars are lost in tax revenue and insurance premiums over recent years. (h/t George’s Employment Blawg.)

S. 2004 focuses on the lost tax revenue aspect of misclassifications more than other wage/hour or employee benefit aspects, like some of the other bills and cases. Still, I think this is, again, a part of a larger trend. Last time it was exempt/non-exempt misclassification which became such a growth market for lawsuits. (Frankly, that probably drove, at least in part, the increase in independent contractor misclassifications.)

If we ever get a bill with teeth, this could be the new “thing” in employment law. Given that, my cautious instincts tell me that it is time for businesses who use independent contracts in a non-business-to-business context to take a very intense look at that relationship, and re-factor their cost-benefit analysis given the increasing risk of future liability.

Nathan Newman has a first look a t Judge Roberts’s labor law record here. (Warning: non-objective commentary follows). Roberts will get through comfortably, I’d bet on it.

Head v. Glacier Northwest, Inc.
(9th Cir. Case No. 03-035567)

In employment discrimination action under Americans with Disabilities Act, plaintiff’s own testimony, unsupported by medical or comparative evidence, may suffice to establish triable issue of fact as to whether plaintiff’s ability to engage in a major life activity is impaired.

Comment: Yikes!

I would like to preface this case note by saying that I am Norwegian and we don’t fire people for not being Norwegian, we fire them for being Swedes! (=

Coghlan v. American Seafoods
(9th Cir. Case No. 03-35314)

The gist: When the same person demotes you that just promoted you have to show why they weren’t being racist before.

Plaintiff, who alleged that he was terminated from his employment in commercial fishing by his company’s new owners because he was not of Norwegian birth, was required–to establish prima facie case–to present sufficient evidence to overcome the “same actor inference” of nondiscrimination based on fact that decision to terminate plaintiff was made by same person who had earlier made decisions to hire and promote him. Evidence that employer had, on two occasions, given temporary control of ship to Norwegian-born employee who had less experience than plaintiff was insufficient to overcome inference of nondiscrimination where there was uncontroverted evidence that decision was based on recommendation of non-Norwegian supervisor who felt plaintiff lacked sufficient leadership skills.

I don’t usually blog federal cases, but I found it interesting that the Ninth Circuit agreed to rehear en banc the Harrah’s case. The Bakersfield Californian has more.

The San Diego Union Tribune reports on a new proposal in Congress to punish employers who hire illegal immigrants. The penalties may be up to 5 years and $50,000.

Academic student employees at the 23 California State University campuses will
stage a one-day strike today over unresolved labor issues.

The Chronicle reports. The NLRB’s recent ruling in NYU. does not apply to state employees.

The Bush administration proposed new regulations Monday aimed at clarifying employment protections for veterans and reservists returning from active duty. The Labor Department initiative was announced as Democrat John Kerry stepped up his criticism of President Bush on Iraq.

The NY Times reports.

[CLEL has a policy of withholding opinions on things like this, but CLEL will bend this rule to say that CLEL hopes that we don't hear shrieks of unfairness about this one from certain shrill and alarmist practitioners out there.]

NLRB may rule ahead of the election on card-check certifications. The LA Times reports.

Norcal grocery negotiations are ongoing, looking to avoid Socal situation. The San Jose Mercury News reports.

The San Diego Union-Tribune reports on the on-going problem of workers returning from Iraq to find their jobs gone.

The rest of the country is having issues with the new OT rules. The WSJ (sub. req’d) reports.

And, the most important issue facing the Governor this month: The Ferret Liberation Act of 2004!

The Court of Appeal held that just because plaintiff alleged that he engaged in what might be termed “concerted activity” (and therefore subject to the NLRA) when he tried to discourage fellow employees from going along with a fraudulent business practice, because interpretation of the CBA was unnecessary, that a cause of action for termination in violation of public policy could stand.

Judgment in favor of Defendant is REVERSED and the case is REMANDED.

The Los Angeles Times reports that the NLRB has thrown out a vote to unionize by nurses at Cedars-Sinai Medical Center because of intimidation tactics.

The Sacramento Bee reports :

Four Northern California supermarket chains and Local 588 of the United Food and
Commercial Workers are scheduled to resume labor talks Monday, while the union’s
members continue to work under terms of a day-to-day contract extension that so
far has averted a strike.

• The Sacramento Bee has a report on the effect of the SB 769(aka “Sue Your Boss” or “Bounty Hunter” statute) compromise in the budget (which has passed the Assembly).

The compromise forbids employees from filing lawsuits against companies that do not post signs explaining workers’ rights. The exceptions are posters regarding payroll and worker-injury laws.
For more serious problems, including violations of the wage and hour laws, a worker can still sue - but the employer is given a grace period to fix the problem first. The worker must inform the employer and the state of the problem, and if nothing’s done, the worker can go to court. Depending on the type of violation, the grace period can last 150 days, Dunn said.

According to the report, this is a version of Dunn’s own amendment to SB 769, SB 1809.

• The San Jose Mercury news reports less than half the anticipated number of workers have taken advantage of the Family Leave Act.

• Ralph’s apparently hired back some of its striking workers during the strike, the OC Register reports.

The allegations were first raised by the United Food and Commercial Workers union, which sued Ralphs in January, alleging that the company had illegally rehired more than 200 employees under false names and Social Security numbers after the workers were locked out in October.
Ralphs later confirmed that it was cooperating with a U.S. Justice Department probe of the allegations and that a federal grand jury had been convened to hear them.
The union’s suit was dropped as part of the February settlement that ended the lockout. However, a National Labor Relations Board inquiry into the allegations is continuing.

The fallout from the grocery strike continues…

A lawyer hired by a union to represent one of its members in an arbitration hearing cannot later be sued by the worker for malpractice because the federal Labor Management Relations Act effectively immunizes the lawyer from such a claim, the 3rd U.S. Circuit Court of Appeals has ruled.

The Legal Intelligencer has this report.

Last week, the NLRB handed down a decision reversing their decision in NYU holding that graduate students are “employees” at private universities (NLRA doesn’t cover state employers.)

The central rationale seems to be that the relationship between students and the univeristy is “educational” and not “economic.” (Does this problematize post-doc fellowship appointments, etc.? are professors on tenure-track “primarily economic” in their relationship vis-a-vis a university?)

The Sacbee (via Howard Bashman) has this article:

Despite a few attention-grabbing reversals - as when the Supreme Court threw out the circuit’s ruling against “under God” in the Pledge of Allegiance, for example - about one in four 9th Circuit decisions reviewed by the high court met with its approval. Only four of the nation’s 13 circuit courts did better. Six had 100 percent reversal rates.

The Ninth Circuit has been more ideologically balanced for years.