LABOR AND EMPLOYMENT ALERT   November 2010

U. S. Supreme Court Declines Review of Challenge Made to New Health Care Law

In Baldwin v. Sebelius, the U.S. Supreme Court denied review of a challenge to the new Federal health care reform law.  The original challenge was filed in California but was dismissed based upon a finding that the parties who brought the lawsuit lacked standing to attack the constitutionality of certain aspects of health care reform.  The specific sections of the new Federal law that were challenged included the individual mandate provision and the employer “play or pay” penalty tax.

The Baldwin case represents the Supreme Court’s first chance to review the new health care reform law.  However, similar challenges have been filed in Virginia, Michigan, and Florida.  In the challenges filed in these States, the respective trial courts have ruled that the plaintiffs do have standing to sue.  As such, the Supreme Court will undoubtedly have occasion to consider the constitutionality of the law in another case.  

For more information on Baldwin v. Sebelius, please visit the Supreme Court’s online docket at the following link: Baldwin v. Sebelius Docket

Paycheck Fairness Act Defeated on Procedural Vote

On November 17, 2010, the U.S. Senate failed to reach cloture on the Paycheck Fairness Act (S. 3772), thereby effectively defeating this important piece of Federal legislation. The Paycheck Fairness Act proscribes pay disparities and discrimination based on one’s sex and expands enforcement procedures and the remedies available for sex-based pay discrimination.  The vote in the Senate was 58-41 and largely fell along party lines.  Senate Republicans all voted against cloture.

Information pertaining to the Paycheck Fairness Act is available at the following link: Paycheck Fairness Act

Case Law Update: U.S. Supreme Court Hears Oral Argument in “Cat’s Paw” Case

As we reported in our April 2010 Labor and Employment Alert, the U.S. Supreme Court granted certiorari in Staub v. Proctor Hospital to determine the following: “In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?”  On November 2, 2010, the Supreme Court heard oral argument.  The full transcript from the oral argument is available by accessing the following link: Staub v. Proctor Hospital Oral Argument Transcript

For further background on Staub v. Proctor Hospital, please click on the following link to access our April 2010 Labor and Employment Alert: April 2010 Labor and Employment Alert

U.S. Supreme Court Hears Oral Argument on Whether Oral Complaints of Violations of the FLSA are Protected Conduct

On October 13, 2010, the U.S. Supreme Court heard oral arguments in Kasten v. Saint-Gobain Performance Plastics.  The question presented to the Supreme Court in Kasten is whether an oral complaint of a violation of the FLSA is protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3).  In the underling proceeding, the Seventh Circuit held that Plaintiff’s unwritten, purely verbal complaints were not protected activity because the FLSA’s use of the phrase “file any complaint” requires an employee to submit something in writing.

The full transcript from the oral argument is available by accessing the following link: Kasten v. Saint-Gobain Performance Plastics

School District Violates Florida Statutes by Deducting Dues from Members of Teacher Association for Another Employee Organization

The Osceola Classroom Teachers Association (“OCTA”) filed an unfair labor practice charge with the Public Employees Relations Commission (“PERC”), alleging that the School District of Osceola County violated Section 447.501(1)(a) and (e), Florida Statutes, by processing dues deductions on behalf of the Christian Educators Association International (“CEAI”).  PERC upheld the hearing officer’s findings of fact and conclusions of law, finding that CEAI was an employee organization within the meaning of Section 447.203(11), Florida Statutes, based upon the actions of CEAI demonstrating that the organization seeks to represent public employees concerning matters related to their employment relationship with a public employer.  Based on CEAI’s status as an employee organization, PERC concluded that the School District violated Florida Statutes by deducting dues for CEAI, and ordered it to pay OCTA its reasonable attorney’s fees and costs of the litigation.

First District Court of Appeal Rules that Law Enforcement Agency Disciplinary Investigations are Confidential and Exempt from Public Disclosure Under Law Enforcement Officers’ Bill of Rights

On November 17, 2010, the First District Court of Appeal issued an opinion in Fraternal Order of Police v. Sheriff John Rutherford, Case No. 1D10-1173 (Fla. 1st DCA 2010), holding that Sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes, apply during disciplinary investigations and, as a result, the public is not entitled to access records or meetings until the conclusion of the investigation or when the investigation ceases to be active.  In Fraternal Order of Police, the Court noted that Jacksonville Sheriff’s Office’s (“JSO”) Response to Resistance Board (“Board”) was responsible for investigating whether the use of force by an officer complied with JSO’s internal policies.  The Board was also responsible for recommending disciplinary action, if necessary. 

As part of its long-standing policy, the Board’s meetings were open to the public.  The Fraternal Order of Police filed a petition for declaratory and injunctive relief arguing that the open Board meeting was confidential under Sections 112.532(4)(b) and 112.533(2)(a), Florida Statutes.  Ultimately, the Fraternal Order of Police prevailed as noted above.   

The opinion is available at the following link: Fraternal Order of Police v. Sheriff John Rutherford

Equal Employment Opportunity Commission Publishes Final Regulations Under the Genetic Information Nondiscrimination Act of 2008 (“GINA”)

On November 9, 2010, the EEOC published its final regulations implementing Title II of GINA in the Federal Register.  The final regulations are important and should be considered by all employers, because Title II governs employers and “prohibits the use of genetic information in employment, restricts employers and other entities covered by Title II from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.” 

Additional information related to GINA is available at the following link:  EEOC Information on Final Regulations and GINA

U.S. Department of Labor Issues News Release Regarding Proposed Rule to Enhance Target Date Retirement Fund Disclosures

On November 29, 2010, the U.S. Department of Labor’s Employee Benefits Security Administration announced a proposed rule designed to “help America's workers better understand target date retirement funds and other similar investments offered in 401(k)-type pension plans.”  According to a news release issued by the Department of Labor, the proposed rule will require that specific information be disclosed to participants and beneficiaries regarding investments in target date funds, including the following:

• The investment’s asset allocation;
• How that allocation will change over time, with a graphic illustration;
• The significance of the investment's “target” date; and
• A statement concerning the risk that a participant investing in a target date fund may lose money in that investment, even close to retirement.

The proposed rule will be published in the Federal Register on November 30, 2010, and is available at the following link: Department of Labor.

The full news release is available at the following link: Department of Labor News Release

Happy Holidays

The attorneys and staff of Sniffen & Spellman, P.A. wish you and yours a happy holiday.

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