November 2009 Quick Clips

Fourth Circuit Upholds Legality Of Two Member Of NLRB, November 24, 2009

On November 20, 2009, the United States Court of Appeals for the Fourth Circuit upheld the power of the National Labor Relations Board ("NLRB") to issue decisions while three of its five seats are vacant. The Court, which has jurisdiction over Maryland, Virginia, West Virginia, and the Carolinas, joined with three other federal appellate courts in upholding the authority of a two member NLRB. Only the United States of Appeals for the Distirct of Columbia has held otherwise.

The issue arose in December 2007, when the Board's four members at the time voted to delegate all the Board's powers to a three member group consisting of members Liebman, Schaumber, and Kirsanow. However, member Kirsanow's recess appointment expired on December 31, 2007, and the Democratic-controlled Senate blocked former President Bush from making any more recess appointments. Therefore, the NLRB was left with only two members - Liebman and Schaumber.

Since the start of 2008 when the Board was reduced to two members, it has issued about 500 published and unpublished rulings. In approximately 77 of those cases, one of the parties has challenged the rulings in the appeals courts on the grounds that the two member Board did not have the authority to issue the rulings. The issue will continue to recur until the Board returns to full strength, which may not happen in the near term. On October 21, 2009, Senator McCain placed a hold on one of President Obama's three nominations (SEIU Associate General Counsel Craig Becker), and Democratic leaders have not allowed the other two nominations to be voted on separately.

DHS Plans To Audit 1,000 Employers, November 20, 2009

by Andreas Lundstedt

The Department of Homeland Security (“DHS”) announced on November 19 that it will audit the records of U.S. employers to ensure that they are complying with employment eligibility verification laws. During the announcement, DHS also took the opportunity to reveal a campaign that is designed to publicly recognize the roughly 170,000 businesses that are currently using E-Verify, the employment verification system.

Notices of inspection have been sent to employers who are associated with critical infrastructure, and they were selected on the basis of their ties to public safety and national security. Names and addresses of the businesses to be audited will not be publicly revealed. The audits will involve a thorough review of Form I-9’s, which employers must fill out and keep on record for each person hired in the U.S.

According to John Morton, Immigration and Customs Enforcement assistant secretary, the audit is intended to seek out and penalize those employers who believe they can cheat the system.

Big Payout For Female Firefighter To Be, November 20, 2009

by Andreas Lundstedt

A California jury recently awarded a woman $2,468,141 due to sex discrimination. The jury found that Ms. Maher, a single mother who was trying to become a firefighter, had been subjected to a hostile work environment and was forced out because of her sex. Maher v. Fresno, E.D. Cal, No. 1:08-cv-00050-OWW-SMS, verdict 11/13/2009.

Ms. Maher had according to the complaint received the 30th highest ranking out of 1,100 applicants on the entrance exams to the Fresno City Fire Department and became the only female to attend the Fresno City College Fire Academy.

The constructive discharge took place when the plaintiff scored a 78 on her mid-term exam, after having been previously informed that a sub 80 score would result in being requested to leave. Plaintiff alleged that she was bullied into signing a letter of resignation, and when she was later seeking reinstatement, requests were denied.

The suit was filed pursuant to California’s Fair Employment and Housing Act and Title IX of the 1972 Education Amendments. The bulk of the nearly $2.5 million award comes from lost wages – wages Ms. Maher supposedly would have earned until retirement, had she remained with the Fire Academy and eventually become a firefighter, instead of her current profession (preschool teacher).

President Obama Extends Unemployment Benefits and Homebuyer Credit, November 9, 2009

by Michael R. Severino

On Friday, November 6th, President Obama signed into law a bill to extend jobless benefits to unemployed workers and extend the controversial home buyer credit. The law provides an extra 14 weeks of jobless benefits to workers in all states, and further provides an additional six weeks for those who live in states with unemployment greater than 8.5%.

The law also extends the $8,000 first time homebuyer credit and creates a new $6,500 tax credit for those who have lived in their current homes for at least five years. Income eligible buyers can take advantage of these credits to purchase a new principal residence for $800,000 or less. The first time buyer credit was due to expire on November 30, 2009, but was extended to contracts signed by April 30, 2010 and closed by June 30, 2010.

H1N1 Prompts Emergency Legislation, November 5, 2009

by Michael R. Severino

Prompted by concerns that sick workers could infect co-workers, Representatives George Miller and Lynn Woolsey, both California Democrats, have introduced emergency legislation that would guarantee five paid sick days for employees who were sent home by their employers. Dubbed the Emergency Influenza Containment Act, the bill would cover full and part time workers in businesses with 15 or more employees, but would exempt employers that already provide at least five days paid sick leave. The bill

Guarantees employees up to five paid sick days without any adverse action if an employer tells a sick employee to go home or stay home;
Permits an employer to terminate the paid sick days at any time by directing the employee to return to work;
Permits the employee to take leave under the FMLA or an applicable sick leave policy after exhausting his or her rights under the bill;

The bill is set for hearing the week of November 16th. If it passes, it would take effect 15 days after being signed into law and would sunset after two years.

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