United States Supreme Court Reconsider Constitutionality of Agency Fees

  • September 28, 2017

In April of 2016 WKCHR posted about Friedrichs v. California Teachers Association. That case held--in a rare 4-4 split following the death of Justice Antonin Scalia--that public-sector agency shop arrangements do not violate the First Amendment’s protections. The Justices are poised to consider the constitutionality of agency fees again this coming term, in Janus v. American Federation of State, Municipal and County Employees. This case concerns a Illinois Department of Healthcare and Family Services employee who makes a similar objection to agency…

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9th Circuit: Employees Must Be Able to Act Together Concerning Wages, Hours or Other Working Conditions

  • September 11, 2016

In a big legal victory for the labor movement, the Ninth Circuit Court of Appeals invalidated a pre-hire contract requiring “a concerted action waiver.”  Such waivers require employees to pursue any claim against their employer exclusively through individual arbitration and in separate proceedings.  The Court in Morris v. Ernst & Young, LLP, No. 13-16599, 2016 WL 4433080 (9th Cir. Aug. 22, 2016) held that such contracts contravene substantive federal rights under Section 7 and Section 8 of the NLRA to…

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9th Circuit Rules Against “The Last Rosie the Riveter” in Pension Dispute

  • August 5, 2016

The Ninth Circuit recently considered an appeal from a summary judgment motion granted against “the Last Rosie the Riveter” in a pension dispute.  Elinor Otto, 96, went to work on an airplane assembly line in the early 1940’s.  In 1965, she began work for McDonnell Douglas, which later became Boeing – her employer for nearly 50 years.  Otto argued that Boeing did not provide her with proper accrued benefits, namely, a formula calculated by multiplying years of service by an…

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Case Significantly Narrows Scope of Church-Plan Exemption to ERISA Requirements

  • August 5, 2016

The Employee Retirement Income Security Act of 1974 (“ERISA”) was passed to protect the interests of participants in employee benefits plans and their beneficiaries by, among other things, setting out substantive regulatory requirements. These requirements are comprehensive and include funding, reporting, minimum standards, and fiduciary and disclosure provisions.  ERISA contains an exemption to the regulatory requirements for certain religiously affiliated institutions.  The question essentially before the court in Rollins v. Dignity Health, No. 15-15351, 2016 WL 3997259, (9th Cir. July…

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Recent NLRB Decision Aids Union Organizing Efforts Where Joint Employment is Involved

  • August 5, 2016

On July 11, 2016, the NLRB held in Miller & Anderson, Inc., 364 NLRB 39, that employer consent is not necessary in order to form a collective bargaining unit comprised of both jointly employed employees and solely employed employees of a single user employer.  This case overturns prior NLRB precedent and is favorable to unions and employees who are employed by a joint employer since they no longer need employer consent to form a single bargaining unit in the context…

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Supreme Court Upholds Affirmative Action Program at University of Texas

  • July 6, 2016

In a 4-3 decision, the United States Supreme Court held in Fisher v. University of Texas, that universities can continue to consider using race as one factor among many to help ensure a diverse student body.  At the University of Texas, most Texas applicants were admitted through a process that guaranteed admission to the top students from all Texas high schools.  Abigail Fisher, a white student, challenged another part of the admissions process where remaining students from Texas and other…

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Ninth Circuit Case Provides Food for Thought regarding the Burden of Proof in Benefits Determinations

  • June 7, 2016

In a recent Ninth Circuit Court of Appeals decision, Estate of Barton v. ADT Security Services Pension Plan, No. 13-56379 (9th Cir. April 21, 2016), the panel of appellate judges shed light on the appropriate burden of proof required to establish entitlement to certain pension benefits. Bruce Barton worked at the American District Telegraph Company (ADT) for nearly twenty years. He learned that other former employees received pension benefits and, after turning 65, he applied for benefits as well. Since…

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FRIEDRICHS v. CTA: Agency Fees Do Not Violate the First Amendment

  • April 6, 2016

In a surprising 4-4 split amongst the liberal and conservative wings of the US Supreme Court, the justices affirmed a Ninth Circuit decision holding that public-sector agency shop arrangements do not violate the First Amendment’s protections for freedom of speech and assembly. Under California law, unions may become the exclusive bargaining representative of respective school districts’ employees.  After establishing itself as the exclusive bargaining representative, a union may put in place an “agency shop” arrangement, whereby teachers and other public…

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Workers Can Sit on the Job Following State Supreme Court Ruling

  • April 6, 2016

The California Supreme Court interpreted state law on employee seating in response to a request from the Ninth Circuit Court of Appeals. A wage order last revised in 1980 states that “all working employees shall be provide suitable seats when the nature of the work reasonably permits the use of seats.” So what, according to the Supreme Court, did regulators mean by “nature of the work”?  The Supreme Court responded that if the tasks being performed at a given location reasonably…

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