Monthly Archives: September 2012

NY Is First State to Require Law Students to Do Pro Bono Work to Get Licensed After Graduation

This is an article from the ABA News website:

In a move that is expected to improve access to the civil justice system for low-income individuals, Chief Judge Jonathan Lippman announced at a press conference Wednesday a new Court of Appeals rule requiring all law graduates to complete 50 hours of pro bono work before they will be admitted to practice in New York.

It is expected that many will complete the pro bono requirement while they are still law students, according to Reuters. However, the pro bono requirement can also be met after an individual earns his or her law degree.

The pro bono requirement doesn’t take effect until Jan. 1, 2015, so it does not apply to current third-year law students.

What qualifies as pro bono work is broadly defined, the article notes, alleviating concerns by law school deans that the program would be difficult to administer.

A 15-member advisory committee that helped draft the new pro bono rule will also oversee its implementation and evaluate how well it works, the news agency notes.

The New York Law Journal (reg. req.) provides a link to a copy of the new pro bono rule (PDF).

via NY Is First State to Require Law Students to Do Pro Bono Work to Get Licensed After Graduation – News – ABA Journal.

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Cat’s Paw and Personal Liability

The Proactive Employer ran an interesting blog post on July 17, 2012 which reported on a case where a supervisor had personal liability under a Cat Paw type of case.

As you will recall, the Supremes in Staub v. Proctor Hospital, held that employers can be liable for discrimination based on the bias of an employee’s supervisors, even though the supervisor in question did not make the actual decision to terminate the employee.

Combine that holding with a 1981 case which permits personal liability and you get a case involving the Cat’s Paw and personal liability.  The case is Smith v. Brady from the 7th Circuit.

via Adjunct Law Prof Blog: Cat’s Paw and Personal Liability.

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Recent Notable NLRB decisions

This is a really good article I came across —-

 

Recent Notable National Labor Relations Board Decisions

By James Hays and Rebecca Hirschklau

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.

A. Confidentiality Directives During Internal Investigations
In Banner Health Systems d/b/a Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the National Labor Relations Board (“NLRB”) declared that a blanket statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers was in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) as restrictive of an employee’s rights arising under Section 7 of the NLRA. [1]

In Banner Health Systems, an employee made a complaint concerning instructions he had received from his supervisor that he felt were not proper and would endanger patients. After the employee had made the complaint, he was told by the human resources consultant not to discuss the matter with his coworkers while the employer was investigating the complaint. The Administrative Law Judge (“ALJ”) found, among other things, that this prohibition was not in violation of Section 8(a)(1), the NLRB disagreed.

While it is generally a standard investigative protocol to advise an interviewee to keep the subject matter of the interview confidential during the investigative process, the NLRB found that the employer had failed to show that the desire for confidentiality out-weighed the employee’s Section 7 rights. Rather, the NLRB held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation: “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.”

In light of the NLRB’s Banner Health Systems, decision, employers should be aware that mere protection of the investigation may no longer be sufficient to justify a blanket prohibition. Instead, an employer must make a case-by-case, witness-by-witness, determination of the above four factors before prohibiting an employee from discussing the investigation and/or complaint with his/her coworkers. Individually analyzing these four factors should ensure that the prohibition on discussion will be justified.

B. Employment At-Will Statement in Employee Handbook Acknoweldgement

In American Red Cross Arizona Blood Services Region and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.

In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.

Analyzing the language in the handbook acknowledgment form under the two-step inquiry utilized for determining whether an employer’s rule violates the NLRA, the ALJ found that “in his view” there was no doubt that employees would reasonably construe the language to prohibit Section 7 activity. The ALJ found that the acknowledgment form was essentially a waiver in which an employee agrees that his/her at-will employment can never change, thereby relinquishing any rights to advocate concertedly, whether represented by a union or not.

While it remains to be seen whether this case will be reviewed by the NLRB, employers should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms. One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to the language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer should surface and/or simply omitting any reference regarding the permanence of the at-will status.

 


[1] Section 7 provides that “[e]mployees shall have the right to self-organization, to for, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

 

 

via Labor Employment Law Blog: Recent Notable National Labor Relations Board Decisions.

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WI rejects anti-union bill

A state judge on Friday struck down Gov. Scott Walkers anti-union Budget Repair Bill, finding it unconstitutionally created separate classes of state workers, who are treated differently and unequally.     In a 27-page ruling, Dane County Circuit Court Judge Juan B. Colas found that 2011 Wisconsin Acts 10 and 32 “single out and encumber the rights of those employees who choose union membership and representation solely because of that association and therefore infringe upon the rights of free speech and association guaranteed by both the Wisconsin and United States Constitutions.”

Walkers Act 10 set off statewide protests and recall elections, and then nationwide copycat legislation. The bill stripped public workers unions of the power to negotiate anything but salary, and made it harder for them to retain certification – except for state patrol troopers and state patrol inspectors, who tend to vote Republican.

You can read the opinion here:  http://www.courthousenews.com/2012/09/17/WiscAct10Ruling.pdf

via Courthouse News Service.

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Filed under courts, employment, legal decision, union