The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.

Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.

The 7th Circuit held that the NLRB had the statutory authority to hear cases and issue orders regarding unfair labor practice charges.

The US Supreme Court granted certiorari on November 2, 2009 to review the 7th Circuit judgment. New Process Steel v. National Labor Relations Board.

The official question presented:

Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that "three members of the Board shall, at all times, constitute a quorum of the Board"?

[Briefs]

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• Love failed to show that the alleged harasser made "explicit or implicit proposals of sexual activity."
• Love failed to provide "credible evidence that the harasser was homosexual."

Love v. Motiva Enterprises (5th Cir non-precedential 10/16/2009) (2-1).

The majority has totally gone off the deep end, and has engaged in simple judicial fabrication - grafting onto Title VII requirements that are not there.

Title VII prohibits "discrimination" "because of ... sex." Harassment is just one way that discrimination can occur - hiring, firing, promoting, harassing.

Nothing in the statute even suggests that a harasser has to be proposing sexual activity in order to violate Title VII. The statute is not about sexual activity or sexuality.

Nothing in the statute suggests that if one women is harassing another woman, the harasser has to be a homosexual in order to violate Title VII.

Let's see what the judges said.

• The majority said Love failed to prove that her co-worker made either explicit or implicit proposals for sexual activity. The court reasoned that the co-worker's "offensive and inappropriate" comments and physical touchings "do not support an inference of sexual attraction and implicit proposals for sex in light of [the co-worker's] consistent insults toward Love and demonstrated negative feelings about Love and her appearance."
• The dissent said, "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... made abundantly clear that, for a plaintiff to prove that she was sexually harassed, she need not show that the harasser was 'motivated by sexual desire.'"

• The majority said Love failed to prove that her co-worker was a homosexual. The court reasoned that Love failed to provide credible evidence that the co-worker was a homosexual, saying that her evidence was not "clear and credible proof that [the co-worker] is homosexual sufficient to defeat summary judgment."
• The dissent said "Oncale v. Sundowner Offshore Svcs, 523 US 75 (1998) ... does not require that a plaintiff show that a same-sex harasser was either amorously motivated or homosexually oriented, as the majority opinion seems to suggest: rather, she need merely show that she was harassed 'because of sex.'"

Hats off to the dissent.

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Let's compare Employment Law Memo to BNA's Daily Labor Report.

• LawMemo reports on more appellate court decisions. Lots more. LawMemo's goal is to report on all precedential decisions from all federal and state appellate courts.
• LawMemo provides a free link directly to the court decision. One click does it.
• LawMemo customers get cases faster. Lots faster.

What's new today (aaah, the Sneak Preview):

I wanted LawMemo customers to get new cases even faster than ever. Not to try to beat out BNA (we've already done that), but to provide LawMemo customers with the best service possible.

Latest Cases feature: http://www.lawmemo.com.

• On the web, all day, every day.
• Cases posted during the day, as we get them and write them up.
• No need to wait for the next email.
• Most cases are posted on the day they are decided.
• No added cost for LawMemo customers.
• http://www.lawmemo.com

What's coming next? (Shhhh, Don't tell.)
Instant Alerts.

• You'll get a text message or email whenever we post a case you're interested in.
• You can pick cases based on jurisdiction: state or federal court, any combination.
• You can pick cases based on pre-selected topics.
• You can pick cases based on key words that you control.
• When? In about another month.

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Interim Final Rules Prohibiting Discrimination Based on Genetic Information in Health Insurance Coverage and Group Health Plans (Publication date 10/07/2009)

Proposed Rule Modifying HIPAA Privacy Rule (Publication date 10/07/2009)

Press release from US Department of Health and Human Services:

FOR IMMEDIATE RELEASE Thursday, Oct. 1, 2009 Contact: HHS Press Office (202) 690-6343; DOL Press Office (202) 693-8666

New Rules Protect Patients’ Genetic Information

Individuals’ genetic information will have greater protections through new regulations issued today by the U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury.

The interim final rule will help ensure that genetic information is not used adversely in determining health care coverage and will encourage more individuals to participate in genetic testing, which can help better identify and prevent certain illnesses.

“Echoing the late Senator Ted Kennedy, our efforts to protect Americans undergoing genetic testing from having the results of that testing used against them by their insurance companies is one of the ‘first major new civil rights’ of the new century,” said HHS Secretary Kathleen Sebelius. “Consumer confidence in genetic testing can now grow and help researchers get a better handle on the genetic basis of diseases. Genetic testing will encourage the early diagnosis and treatment of certain diseases while allowing scientists to develop new medicines, treatments, and therapies.”

The interim final rule with request for comments and the notice of proposed rulemaking implement Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA). Under GINA, and the interim final rule, group health plans and issuers in the group market cannot: increase premiums for the group based on the results of one enrollee’s genetic information; deny enrollment; impose pre-existing condition exclusions; or do other forms of underwriting based on genetic information. In the individual health insurance market, GINA prohibits issuers from using genetic information to deny coverage, raise premiums, or impose pre-existing condition exclusions.

Further, under GINA and the new interim final regulations, group health plans and health insurance issuers in both the group and individual markets cannot request, require or buy genetic information for underwriting purposes or prior to and in connection with enrollment. Finally, plans and issuers are generally prohibited from asking individuals or family members to undergo a genetic test.

“Today’s genetic technologies yield data that are vital to helping Americans make personal, medical decisions. It is essential that we protect such information and ensure it is not misused by health plans or insurers,” said Labor Secretary Hilda L. Solis. “The rules issued today protect individuals against the unwarranted use of information related to their personal health because no one should have to fear that disclosure of their medical data will put their job or health coverage at risk.”

Additionally, HHS, through its Office for Civil Rights (OCR), issued a notice of proposed rulemaking with a 60-day comment period, to propose changes to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to prohibit health plans from using or disclosing genetic information for underwriting purposes.

The proposed rule published today modifies the HIPAA Privacy Rule pursuant to GINA Title I to clarify that genetic information is health information and to prohibit the use and disclosure of genetic information by covered health plans for eligibility determinations, premium computations, applications of any pre-existing condition exclusions, and any other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. In combination with the new penalties for violations of the HIPAA Privacy Rule, as provided for by the American Recovery and Reinvestment Act of 2009, a use or disclosure of genetic information in violation of the HIPAA Privacy Rule could result in a fine of $100 to $50,000 or more for each violation.

Please visit http://www.federalregister.gov/OFRUpload/OFRData/2009-22504_PI.pdf to view the new regulations and http://www.dol.gov/ebsa for more information about them. For additional information on the OCR notice of proposed rulemaking, please visit: www.hhs.gov/ocr/privacy.

Comments from HHS Office For Civil Rights (OCR) relating to the HIPAA Privacy Rule:

The Genetic Information Nondiscrimination Act (GINA) was signed into law on May 21, 2008. GINA protects individuals against discrimination based on their genetic information in health coverage and in employment. GINA is divided into two sections, or Titles. Title I of GINA prohibits discrimination based on genetic information in health coverage. Title II of GINA prohibits discrimination based on genetic information in employment.

In the proposed rule issued on October 1, 2009 OCR proposes to modify the Privacy Rule to clarify that genetic information is health information and to prohibit the use and disclosure of genetic information by covered health plans for underwriting purposes, which include eligibility determinations, premium computations, applications of any pre-existing condition exclusions, and any other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. OCR is publishing this proposed rule with a 60 day period for public comments.

OCR developed this proposed rule after coordinating with the Department of Labor (DOL), the Centers for Medicare and Medicaid Services (CMS), and the Department of the Treasury (Treasury), which have responsibility for issuing regulations under GINA Title I to prohibit discrimination based on genetic information by group health plans and health insurance issuers, and with the Equal Employment Opportunity Commission (EEOC), which has responsibility for issuing regulations under GINA Title II to prohibit discrimination based on genetic information by employers. Additionally, HHS sought guidance from the National Institutes of Health on the definitions and on other issues.

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Dinkoff was Managing Director and Head of the Employment Law Group at Merrill Lynch & Co., Inc.

Press release from Weil Gotshal:

New York, NY, September 22, 2009 – Weil, Gotshal & Manges announced today that Allan Dinkoff, formerly a Managing Director and Head of the Employment Law Group at Merrill Lynch & Co., Inc., has joined the firm’s Employment Litigation Practice as counsel in the New York office.

Mr. Dinkoff has nearly 30 years of experience handling employment matters and complex commercial litigation. During his 12 years at Merrill Lynch, he was the principal advisor to the Board of Directors and executive management on the firm’s most complex and high profile employment issues around the globe. He played a key role in successfully managing large reductions in force and in defending discrimination class actions, national wage and hour cases, and high profile individual claims for discrimination, bonuses, stock rights and severance.

"Allan brings a unique combination of significant senior in-house experience with extensive outside counsel experience litigating cases. Nobody else has that level of combined experience in the employment area, which is a great resource for our clients," said Jeffrey Klein, Chair of Weil Gotshal's national Employment Litigation practice. "What also is unique is the breadth of that experience, which ranges from complex commercial litigation to virtually every aspect of employment problems that our clients face, including class actions, cross-border transactions, executive compensation and separation agreements, restrictive covenant litigation, and wage and hour issues."

Mr. Dinkoff remarked, "What attracted me to Weil Gotshal was not only the quality of the lawyers, but the depth and breadth of the platform in the areas that are critical to handling complex employment matters in the current environment. Today, you need real expertise not only in complex litigation and employment law, but corporate governance and executive compensation as well, both here in the U.S. and around the world. Weil Gotshal is one of the only firms with that platform."

Prior to Merrill Lynch, Mr. Dinkoff was Deputy General Counsel at GAF Corp., where he was responsible for litigation involving complex commercial disputes, class actions, products liability, antitrust and insurance coverage. His private practice experience includes handling a wide variety of commercial litigation and regulatory enforcement matters as a partner at the New York law firm of Baer, Marks & Upham LLP, particularly in the securities and commodities industry.

Mr. Dinkoff is active in the Association of the Bar of the City of New York, where he has served for more than 20 years on numerous committees dealing with professional ethics. He has lectured widely on professional ethics, Sarbanes-Oxley issues and employment law.

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That's the question the US Supreme Court will address in Lewis v. City of Chicago (Certiorari granted 09/30/2009) [briefs etc.]

The City administered a written test to firefighter job applicants in 1995. The City notified applicants of the results at the end of January 1996. Plaintiffs filed an EEOC charge on March 21, 1997 claiming that the test had a disparate impact on black applicants and was not a valid test of firefighting aptitude.

The charge was filed more than 400 days after the plaintiffs were notified, but within 300 days of the City's beginning to hire applicants. The trial court ruled that each hiring was a fresh violation of Title VII, so the plaintiffs' suit was timely.

The 7th Circuit reversed, finding that "discrimination was complete when the tests were scored" and "was discovered when the applicants learned the results." Therefore, the EEOC charge was not filed on time.

The 7th Circuit rejected plaintiffs' alternative arguments that the City's violation was a "continuing violation," and that the running of the statute of limitations should be tolled under that doctrine of equitable tolling.

The US Supreme Court granted certiorari to review the 7th Circuit judgment.

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I don't know whether that's a record, but it indicates the EEOC's willingness to go to court on behalf of individuals as well as groups of employees, and against large and relatively small employers.

Here is the list:

• EEOC Files Class National Origin Harassment Suit Against Hilton Hotel in Chicago Suburb (September 28, 2009)
• EEOC Sues Dollins Construction Company for Race Discrimination and Retaliation Against Black Workers (September 28, 2009)
• Allsup's Convenience Stores Sued by EEOC for Retaliation in Discrimination Charge (September 28, 2009)
• EEOC Sues Garden Ridge for Disability Discrimination (September 25, 2009)
• EEOC Sues AT&T for Disability Discrimination (September 25, 2009)
• Sears Sued by EEOC for Age Discrimination (September 25, 2009)
• EEOC Sues Cinram Wireless for Religious Discrimination (September 25, 2009)
• The Redwoods in Yosemite Sued by EEOC for Unlawful Treatment of Hispanic Employees (September 25, 2009)
• EEOC Sues Balance Staffing for Disability Discrimination (September 25, 2009)
• Immokalee Packing Companies Sued by EEOC for Discriminating Against Haitians (September 25, 2009)
• Jim Walter Resources Coal Company Discriminated Against Deaf Mineworker, EEOC Charges in Suit (September 25, 2009)
• Pearsall Nursing Center Sued by EEOC for Racial Harassment and Retaliation (September 25, 2009)
• EEOC Sues St. John Health System for Disability Discrimination (September 24, 2009)
• EEOC Sues Adam Brothers Farming for Sexual Harassment and Retaliation (September 24, 2009)
• EEOC Sues Sentinel Real Estate Corp. For Pregnancy Discrimination (September 24, 2009)
• NEEOC Sues Better Family Life For Pregnancy Discrimination (September 24, 2009)
• McDonald's Franchise Sued By EEOC For Disability Discrimination (September 24, 2009)
• New Bern Mazda-Suzuki Sued For Sex Harassment (September 24, 2009)
• EEOC Sues Planet Ford for Race, Age and Sex Harassment, Retaliation (September 24, 2009)
• Little Rock Retirement Community Sued By EEOC For Disability Discrimination (September 24, 2009)
• Marlow 6 Theatre Sued by EEOC for Disability Bias (September 23, 2009)
• Southeastern Telecom Retaliated Against Account Executive, EEOC Charges in Suit (September 23, 2009)
• Columbus Holiday Inn Conference Center Sued by EEOC for Disability Discrimination (September 23, 2009)
• Alliance Rental Center Sued by EEOC for Religious Discrimination (September 23, 2009)
• Patton Archery Sued by EEOC for Sexual Harassment (September 23, 2009)
• AMX Companies Sued by EEOC for Sex Discrimination (September 23, 2009)
• Childress Engineering Services Sued by EEOC for Sexual Harassment and Retaliation (September 23, 2009)
• Boh Bros. Construction Company Sued for Male-On-Male Sexual Harassment at Federal Post-Katrina Project (September 23, 2009)
• Texas Branch of National Security Company Sued By EEOC For Sex Discrimination (September 22, 2009)
• King Soopers Supermarkets Sued by EEOC for Disability Discrimination (September 22, 2009)
• Knouse Foods Sued by EEOC for Sexual and National Origin Harassment and Retaliation (September 22, 2009)
• Southern Metals Company Sued by EEOC for Age Discrimination (September 22, 2009)

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LeClairRyan attorneys will explore key issues in labor and employment law in
half-day New Jersey seminar on October 15.

LeClairRyan press release:

NEWARK, N.J. (9/21/09) – Legal challenges associated with labor and
employment are as timely as today’s headlines. When employees fritter away
hours or spread office gossip on Facebook and Twitter, how should their
supervisors respond? When a global recession leads to successive rounds of
layoffs, how can businesses draft the most effective separation and severance
agreements? Attorneys from LeClairRyan’s Labor & Employment Group will
explore such issues in a half-day seminar on Oct. 15.



The annual event, which runs from 8:30 a.m. to 12:30 p.m. at the Park Avenue
Club in Florham Park, and is free of charge, includes presentations by attorneys
who are in the forefront of labor and employment law.

• Joseph P. Paranac, a Newark-based shareholder in the firm, will speak
  about employment liability issues arising from computer and Internet usage
  in the workplace, and other cyberspace concerns.
  
• In a joint presentation, Margaret P. “Penny” Mason, a New Haven,
  Conn.-based partner and senior counsel, and Susan Childers North, a
  Virginia-based shareholder, will offer advice on drafting effective
  separation and severance agreements. 
  
• Laura H. Corvo, a Newark-based partner, will offer tips on navigating the
  Family and Medical Leave Act, the New Jersey Family Leave Act and the
  Americans with Disabilities Act. 
  
• In a joint presentation, James P. Anelli, a Newark-based shareholder, and
  Elizabeth K. Acee, a New Haven-based partner, will discuss the consequences
  of misclassifying independent contractors.

Guest speakers include Marlen Bodden, Staff Attorney with the Legal Aid
Society of New York and founder of The Employment Law Project, and Judy Keenan,
Supervisory Trial Attorney with the New York District Office of the U.S. Equal
Employment Opportunity Commission.



A full breakfast will be served at 8 a.m. While attendance at the half-day
seminar is free, seating is limited. To register, e-mail Diane Frank at
diane.frank@leclairryan.com or call (973) 491-3313. The registration deadline is
Mon., Oct. 12.

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The document is 93 pages.

The public will have 60 days within which to file comments.

Full text: Regulations to Implement Americans with Disabilities Act as amended

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The US Chamber of Commerce has published a 79 page report, The National Labor Relations Board in the Obama Administration: What Changes To Expect

No matter which side of the issues you are on, this document will arm you with a knowledge of the probable future changes to expect from the NLRB under the Obama administration.

HT: Workplace Prof Blog; Adjunct Prof Blog.

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Mary Jacksteit, Chair, Federal Service Impasses Panel – Federal Labor Relations Authority
Mary Jacksteit has over 20 years of experience in mediation, facilitation and negotiation working for non-profit organizations, government agencies and community organizations. Jacksteit previously served on the Federal Service Impasses Panel for seven years during the Clinton Administration. She began her legal career as a labor attorney for the American Federation of Government Employees, AFL-CIO, where she later served as Deputy General Counsel. In the late 1980’s she began practicing as a labor arbitrator in the public and private sectors, serving on panels of the American Arbitration Association, Federal Mediation and Conciliation Service, and U.S. Postal Service. For 10 years, she worked at Search for Common Ground - a conflict resolution organization. Since 2007 she has been associated with the Public Conversations Project in Watertown, Massachusetts and has maintained a private practice focused on community, public policy, organizational planning, and conflict management. Jacksteit has a law degree from Georgetown Law School, an M.S. from George Mason University’s Institute for Conflict Analysis and Resolution, and a B.A. from the University of Pittsburgh.

Martin H. Malin, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Martin H. Malin is a Professor of Law and the Director of the Institute for Law and the Workplace at Chicago-Kent College of Law, Illinois Institute of Technology. He teaches courses in labor law, collective bargaining, arbitration, public sector labor law, employment law, contracts and jurisprudence. Malin has published five books, including Public Sector Employment: Cases and Materials (West 2004), the leading law school casebook on public sector labor law; and more than 60 articles on labor law and dispute resolution. An active arbitrator and mediator since 1984, Malin just completed a three-year term on the Board of Governors of the National Academy of Arbitrators and is a fellow of the College of Labor and Employment Lawyers. He also serves on the Executive Committee of The Labor Law Group and is a past chair of the Association of American Law Schools Section on Labor Relations and Employment Law. From 2004 - 2008, Malin served as Reporter for the Association of Labor Relations Agencies’ Neutrality Project. He was the principal drafter of ALRA’s Neutrality Report, a mini-treatise on labor board and mediation agency impartiality. During the mid 1980s, he served as a consultant to Illinois’ public employment labor boards and drafted the regulations implementing Illinois’ newly-enacted public sector labor relations acts. Malin joined the Chicago-Kent faculty in 1980, after teaching at Ohio State University and serving as Law Clerk to U.S. District Judge Robert DeMascio in Detroit. He holds a J.D. from George Washington University and a B.A. from Michigan State University.

Barbara B. Franklin, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Barbara B. Franklin is an arbitrator and mediator in Washington, D.C. She serves on arbitration rosters administered by the Federal Mediation and Conciliation Service, the American Arbitration Association and the Financial Industry Regulatory Authority. She is a mediator for the U.S. Court of Appeals and District Court for the District of Columbia. Since 1999, she has served as a Public Member of the D.C. Police and Firefighters Retirement Board, a position that is appointed by the Mayor of D.C. Prior to her retirement from the Federal Government in 1997, Ms. Franklin was Chief Counsel to Members Pamela Talkin and Donald S. Wasserman of the Federal Labor Relations Authority. From 1977 to 1989, she served as a staff attorney and then supervisory attorney for the National Labor Relations Board in the Office of General Counsel (Division of Advice). Franklin received her J.D. from The Catholic University of America’s Columbus School of Law, where she was Associate Editor of the Law Review, and her B.A. from Northwestern University.

Marvin E. Johnson, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Marvin E. Johnson is a nationally recognized mediator and arbitrator of public and private disputes. Johnson serves on the rosters of the JAMS Resolution Experts, the International Institute for Conflict Prevention and Resolution, the American Arbitration Association, and Accormend Associates. He served 16 years as Assistant and Associate Professor of Labor Relations, Business Law and Conflict Management at Bowie State University where he founded the Center for Alternative Dispute Resolution. Johnson’s previous appointment to the Federal Service Impasses Panel by a Democratic President and his appointment to the Foreign Service Grievance Board by a Republican Secretary of State are testaments to his impartiality and his dispute resolution expertise. In addition, he was appointed by the Governor of Maryland to serve on the Maryland State Labor Relations Board and by the Chief Judge of the Maryland Court of Appeals to serve on the Maryland Alternative Dispute Resolution Commission. Johnson is a member of the International Academy of Mediators, the ABA Section of Dispute Resolution, the Association for Conflict Resolution, the American College of Civil Trial Mediators, the Society of Labor and Employee Relations Professionals and Mediators Beyond Borders. He received his J.D. degree from Catholic University, his M.S. degree in Industrial Relations from the University of Wisconsin, and his B.B.A. degree from Kent State University.

Thomas E. Angelo, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Thomas Angelo began his career as an attorney with the Solicitor’s Office at the U.S. Department of Labor, in Washington D.C. He joined the National Treasury Employees Union in 1972, serving as Associate General Counsel in Washington D.C. and San Francisco. In 1981, he was named Regional Attorney for the San Francisco Region of the Federal Labor Relations Authority. Angelo became a full time arbitrator in 1983 and is a member of the National Academy of Arbitrators. He serves as a panel arbitrator for many private and public sector parties. Angelo is a graduate of Willamette University and Willamette University College of Law.

Edward F. Hartfield, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Edward F. Hartfield is the Executive Director of the National Center for Dispute Settlement (NCDS). He has devoted his entire 36-year career to serving as an impartial party as mediator, arbitrator, facilitator, election administrator, trainer, neutral convener, and ombudsman. Hartfield has served as Commissioner with the Federal Mediation and Conciliation Service and State Mediator for the New Jersey Office of Dispute Settlement. He was previously appointed by President Clinton to the Federal Service Impasses Panel, a seven-person panel established to resolve disputes in the Federal Government. Hartfield has also served as the International President of the Society of Professionals in Dispute Resolution (SPIDR) and currently is Vice President of the Detroit Chapter of the Labor and Employment Research Association (LERA). Hartfield serves on the Michigan State Court Administrative Office Task Force on Mediation Confidentiality and previously served on the Michigan Supreme Court Task Force on Mediation. He received a Masters in International Relations from the University of Detroit and B.A. from Oberlin College.

Don Wasserman, Member, Federal Service Impasses Panel – Federal Labor Relations Authority
Don Wasserman has been a labor relations professional his entire career. Since 2001, he has been an arbitrator/mediator, specializing in all levels of the public sector. He is a Member of the D.C. Public Employee Relations Board (DC PERB) and the Metropolitan Washington Airports Authority Employee Relations Council (MWAA-ERC). Wasserman is also on the labor rosters of the American Arbitration Association, Federal Mediation and Conciliation Service and National Mediation Board. In December 1995, he was appointed by former President Clinton as a Member and then as Chairman of the Federal Labor Relations Authority (FLRA), where he served until 2001. Wasserman began his career at the Communications Workers of America and then the International Association of Machinists. From 1967 until his appointment to FLRA, Wasserman held various top positions at the American Federation of State, County and Municipal Employees where he served as Director of the Department of Collective Bargaining and Assistant to the President. His major responsibilities included serving as chief negotiator in establishing initial collective bargaining agreements with several state governments and large local governments. He frequently testified before legislative bodies on key collective bargaining issues such as bargaining unit structure and impasse resolution procedures, as well as matters including government reinvention/redesign and civil service reform. Wasserman received an M.B.A from the University of Pennsylvania and a B.S. from Temple University.

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LVRC Holdings v. Brekka (9th Cir 09/15/2009)

LVRC sued Brekka (its former employee) and others claiming a violation of the federal Computer Fraud and Abuse Act (CFAA) by accessing LVRC's computer "without authorization." The 9th Circuit affirmed summary judgment for Brekka and all defendants.

(1) While still employed by LVRC, Brekka had permission to use LVRC's computers. He used his employer's computer to email to himself and to his wife some LVRC documents, including a customer list and LVRC's financial statement. LVRC argued that this use of the computer was "without authorization" within the meaning of CFAA because Brekka obtained confidential information in order to further his own personal interests. The 9th Circuit found no language in CFAA to support this argument, saying that "authorization" means "permission."

The Court said:

"When an employer authorizes an employee to use a company computer subject to certain limitations, the employee remains authorized to use the computer even if the employee violates those limitations. It is the employer’s decision to allow or to terminate an employee’s authorization to access a computer that determines whether the employee is with or 'without authorization.'"

(2) There was insufficient evidence to establish that Brekka gained access to LVRC's computer after he left the company. Someone used his login credentials, and the login was from an ISP in a city near where Brekka was attending a convention, but this was not sufficiently probative to avoid summary judgment.

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Miller & Chevalier press release:

Washington, D.C., September 14, 2009 – Miller & Chevalier Chartered today announced that Tess J. Ferrera has joined the firm’s ERISA and Fiduciary Litigation practice as a Member. She practiced previously in the Washington, D.C. office of Thompson Hine LLP. In addition, Michael Khalil, who was with the litigation practice of Sutherland Asbill & Brennan LLP, has joined the firm’s ERISA and Fiduciary Litigation practice as an associate.

Ferrera advises clients and defends them in litigation on a variety of issues, including the permissible use of plan assets, fiduciary considerations in making investment decisions, fiduciary obligations in selecting and monitoring service providers, and fiduciary obligations in negotiating vendor contracts. She has a proven track record representing clients that are under Department of Labor investigations and has extensive experience counseling clients on correcting fiduciary violations both through the U.S. Department of Labor correction program, as well as outside of that program. Ferrera has represented a diverse group of clients, including insurance companies, mutual funds, trade association multiple employer welfare arrangements (MEWAs), professional employer organizations, investment committees, single employers, Davis-Bacon plans and court-appointed independent fiduciaries on complex ERISA counseling and litigation matters.

“Because of the value of the assets in employee benefit plans under ERISA and the millions of individuals covered, litigation surrounding ERISA has increased,” said Anthony Shelley, head of Miller & Chevalier’s ERISA and Fiduciary Litigation practice. “A growing number of lawsuits are being filed against plans, employer sponsors, and fiduciaries, as well as on behalf of beneficiaries against the PBGC, and ERISA litigation is expected to multiply over the next few years due to the turmoil in the marketplace. Tess brings a wealth of experience to our ERISA team and her background, including her representation of clients before the Department of Labor, will be of great value.”

ERISA and Fiduciary Litigation Practice

Miller & Chevalier’s ERISA and Fiduciary Litigation team routinely handles the varied types of litigation arising under ERISA, from complex class action claims to individual executive compensation claims. The group represents insurers, plan administrators, plan sponsors, fiduciaries, employers, and service providers before federal and state courts, the Department of Labor, and the Internal Revenue Service. The group also represents beneficiaries before the Pension Benefit Guaranty Corporation and in the federal courts in matters against the PBGC.

The firm has represented national and international insurance companies, health maintenance organizations, large-scale employers, self-funded employee benefits plans, and ERISA participants. In ERISA litigation matters, Miller & Chevalier lawyers focus on prosecuting and defending breach of fiduciary duty issues under ERISA Section 404(a), as well as defense of ERISA benefits determinations. These matters have encompassed both ERISA pension plans and ERISA health benefits plans. In this regard, the firm currently represents both ERISA qualified and non-qualified pension plans in multi-million dollar breach of fiduciary duty actions against former fiduciaries.

“I am very pleased to be joining Miller & Chevalier – a firm that is recognized for its work in the ERISA and employee benefits areas, particularly because of its ability to navigate complex matters for its clients before the courts and the federal agencies that jointly administer ERISA,” said Tess Ferrera. “The firm is committed to continuing to expand its strong footprint in the ERISA litigation and transactional areas, and I look forward to helping the firm grow this practice, which is so critical in today’s marketplace.”

About Tess J. Ferrera

Before entering private practice, Ferrera worked for six years as a trial attorney for the Department of Labor (DOL), representing the Secretary of Labor in federal courts in numerous states litigating alleged violations of ERISA’s fiduciary and prohibited transaction provisions.

Ferrera is the author of the ERISA Fiduciary Answer Book and Senior Editor for the Journal of Pension Benefits. She is a frequent speaker at major employee benefits conferences. She holds a B.A. from George Washington University and a J.D. from Georgetown University Law Center.

About Miller & Chevalier

Founded in 1920, Miller & Chevalier is a leading Washington, D.C. law firm with more than 100 lawyers who practice in the areas of tax, employee benefits, including ERISA; international law and business; complex litigation; and government affairs. For more information on the firm, visit www.millerchevalier.com.

Contacts:
Anthony Shelley, Member, Miller & Chevalier ERISA and Fiduciary Litigation practice, 202-626-5924
Tess Ferrera, Member, Miller & Chevalier ERISA and Fiduciary Litigation practice, 202-626-1470
Laura Miller, Media Relations, Greentarget, 312-252-4104

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From the Jackson Lewis press release (09/11/2009:

Washington, D.C., (September 11, 2009) -- Jackson Lewis LLP, one of the nation's largest and fastest growing workplace law firms, announced that Robert Lloyd Clayton has joined the firm as a Partner in its Washington DC Region office. Mr. Clayton is a leading labor law practitioner with special expertise in college and university compliance issues and had the distinction of being named Sports & Entertainment Lawyer of the Year by the National Bar Association.

Prior to joining Jackson Lewis, Mr. Clayton was a shareholder at Littler Mendelson P.C.

Mr. Clayton counsels colleges and universities in labor-management relations and employment litigation, and in Title IV, VI and IX and NCAA compliance matters. His experience includes conducting numerous Title IX audits and NCAA and EEO compliance training for athletic departments. He has also served as lead counsel in major cases before the NCAA Division I and Division II Committees on Infractions.

In addition, Mr. Clayton represents a broad spectrum of corporations and public institutions with respect to labor and employment litigation matters and in federal administrative proceedings. He also has in-depth experience in the gas utility industry where he has handled numerous NLRB unfair labor practice cases and has provided counseling on a wide-variety of compliance issues including FLSA compliance and EEO/diversity training. In addition, he is considered one of the foremost legal authorities on the impact that climate control legislation will have on the workplace and frequently advises energy companies about recruitment and job training programs.

John M. Remy, managing partner of the firm’s Washington DC-Region office, says, “Robert brings a wealth of specialized legal knowledge that will be valuable to many of our clients. He enhances our position as a leading college and university legal resource and will assist us within the fast-growing energy industry. We are very pleased to have him join our firm.”

“I could not be more pleased to have Robert as a part of our team,” said Patrick L. Vaccaro, firm-wide managing partner for Jackson Lewis. “He brings to the Jackson Lewis table a skill set that is both out of the ordinary and extremely relevant to the ever-changing field of workplace law. He will be an added asset to our college and university clients as well as those within the energy field. When we look to bring experienced laterals on board, we ask ourselves the following question: How does this addition enhance our ability to provide world-class representation to our ever-growing client base? Robert’s experience, expertise, reputation and character, make this one an easy call. We could not be more delighted.”

Mr. Clayton received his undergraduate degree from Harvard University where he served as captain of the track team and earned All-Ivy and All- ICAAAA honors. He received his juris doctor from the George Washington University National Law Center. He is a nationally recognized speaker and appears frequently at the annual conferences of the American Bar Association, National Bar Association, National Association of College and University Attorneys, National Employment Law Council, National Association of Collegiate Directors of Athletics and the Eastern College Athletic Conference. Mr. Clayton is also a regular contributor to Athletic Business; University Business; Legal Issues in College Athletics and Sports Litigation Alert, and has been a Contributing Editor to The Developing Labor Law.

He is admitted to practice law in the District of Columbia, Florida and Louisiana.

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EEOC press release 09/14/2009:

ANCHORAGE, Alaska – The Alaska affiliate of the National Education Association (NEA-AK) has agreed to provide $170,000 and other relief to settle a federal lawsuit charging that its executive director targeted four female employees for severe harassment because of their gender, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. This is EEOC’s second lawsuit against the NEA-AK charging gender-based harassment; the earlier case was settled on behalf of three other women for $750,000 in 2006 (EEOC and Christopher v. NEA-AK and NEA, CV 01-0225 (JKS).

According to the EEOC’s most recent lawsuit, then-Executive Director Thomas Harvey delivered a daily barrage of abusive treatment to female employees and treated men less harshly. The women described Harvey’s face turning bright red and his neck veins bulging out as he shook his fists in their faces and yelled and screamed at them, often reducing these employees to the point of tears. The EEOC also alleges that although top management officials at NEA-AK were aware of Harvey’s abusive behavior, either from directly witnessing it or from receiving complaints, they took no action to stop the abusive behavior and in fact promoted Harvey to his executive position during the EEOC’s first lawsuit on similar charges. The agency’s investigation found that Harvey’s conduct continued through that litigation and resulted in this second lawsuit.

Former Associate Staff Ellen Cruse, who worked at the union for over 20 years, stated, "I am glad this is over and I am able to fully close that chapter. One would hope that NEA-Alaska, after having settled claims with seven current or former employees, would take greater care and attention to the treatment of their employees."

Harassment based on gender violates Title VII of the Civil Rights Act of 1964, which also protects employees who report such offenses from retaliation. The EEOC filed the suit (EEOC and Poole v. NEA-AK, NEA and Thomas Harvey, Civil Action No. 07-00197 RRB) in the U.S. District Court for Alaska after a neutral investigation by EEOC investigator Karen McCloskey and first attempting to reach a voluntary settlement through the agency’s conciliation process. One of the female employees, Denise Poole, intervened in the EEOC’s suit and named the National Education Association and Thomas Harvey as additional defendants pursuant to state law claims. Those state claims were also settled for an unspecified amount.

In addition to the monetary relief to be shared by four women, NEA-AK has agreed to review its employment policies to ensure that they protect employees against discrimination; provide effective means to address complaints of discrimination; and educate employees about their rights and responsibilities in the workplace. Also, NEA-AK is required to report to the EEOC for four years on its compliance with the consent decree settling the suit.

“We do see repeat offenders in our line of work, but it is rare to sue the same employer for the same extreme harassment by the same manager, under the same top management,” said EEOC Regional Attorney William Tamayo. “If this is what it takes to send the message though, the EEOC will not hesitate to continue to take action against illegal workplace harassment.”

EEOC San Francisco District Director Michael Baldonado added, “It is unfortunate that a teachers’ union, whose primary purpose is to protect union members from abusive work practices, would allow this type of egregious, unchecked harassment to happen to employees in its own workplace.”

According to www.nea.org, the NEA is the nation's largest professional employee organization, representing 2.7 million elementary and secondary teachers, higher education faculty, education support professionals, school administrators, retired educators and students preparing to become teachers. On its web site www.neaalaska.org, NEA-Alaska claims over 11,000 members in 65 local affiliates throughout the state, and has 26 staff working in offices in Anchorage, Juneau and Fairbanks.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

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