According to Court of Appeals for D.C. Circuit Earlier today, the Court of Appeals for the District of Columbia Circuit ruled that the National Labor Relations Board, which has functioned with only two of its five members since January 1, 2008, is “not properly constituted” and has no decision-making authority. Laurel Baye Healthcare of Lake Lanier, Inc. v. N.L.R.B., No. 08-1162 (D.C. Cir., 5/1/09). At the same time, in another unfair labor practice case raising the identical issue, the Seventh Circuit agreed to enforce a Board Decision and Order issued by the two-member Board. New Process Steel L.P. v. N.L.R.B., No. 08-3517, et al. (7th Cir., 5/1/09).

As a result of term expirations and the election-year failure to make appointments to fill the three vacancies on the Board, an NLRB reduced to two members — Chairman Wilma Liebman and Member Peter Schaumber — has issued hundreds of decisions over the course of the last 16 months in both unfair labor practice and representation cases. Today’s ruling by the District of Columbia Circuit calls the validity of those decisions into question.

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) creates a variety of affirmative action obligations for employers with federal government contracts. The Act was amended in 2002 by the Jobs for Veterans Act (“JVA”). In May 2008, the Department of Labor finalized rules that implement changes to these obligations made by the JVA for employers with federal government contracts that are entered into or modified on or after December 1, 2003. Employers with federal contracts entered into before December 1, 2003 must continue to comply with VEVRAA’s pre-JVA requirements, and employers with contracts in both categories are required to comply with both the new and the old regulations.

Most of the affirmative action requirements set out in VEVRAA remain unchanged by the JVA. This Tip of the Month outlines several important requirements under VEVRAA, and highlights the key changes created by the JVA.

As of this writing, the Centers for Disease Control and Prevention has confirmed 109 cases of the H1N1 virus, commonly known as swine flu, in the United States. The World Health Organization has confirmed 331 cases of swine flu worldwide and has raised the pandemic threat level to Phase 5 on its six-step scale (Phase 5 designation essentially means that infections from the outbreak that originated in Mexico have been jumping from person to person with relative ease). This Client Alert outlines a few of the myriad legal issues that employers may face with regard to swine flu. As every situation is different, employers are strongly encouraged to seek the advice of counsel with respect to any questions related to these issues. We are, of course, available to provide a more detailed analysis as to any of the matters discussed below or to advise on any other questions that you may have on pandemic flu planning and its implications for the workplace.

14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456 (2009)

Plaintiffs, members of the Service Employees International Union (the “SEIU”), filed a complaint with the EEOC alleging age discrimination under the Age Discrimination in Employment Act and, after receiving their right-to-sue letters, filed suit against their employer alleging age discrimination. In response, the employer filed a motion to compel arbitration…

Day v. American Seafoods Co., 557 F.3d 1056 (9th Cir. 2009)

Jesse Day entered into a contract to work for American Seafoods Co. for one fishing voyage. In this lawsuit, Day sought payment for “unearned wages” for a period of time longer than the single voyage and contended that extrinsic evidence would establish an oral understanding for a longer period. The district court declined…

Naranjo v. Spectrum Sec. Services, 172 Cal. App. 4th 654 (2009)

Gustavo Naranjo worked as a detention officer for Spectrum, which provides security services in holding facilities and detention centers throughout Los Angeles County under a contract with federal Immigration and Customs Enforcement (“ICE”). The terms of Spectrum’s contract with ICE rely on wage and fringe benefit determinations by the Secretary of the U.S.…

Gomez v. Lincare, Inc., 173 Cal. App. 4th 508 (2009)

Lincare provides respiratory services and medical equipment setup to patients in their homes. Plaintiffs were Lincare service representatives who drove vans containing liquid and compressed oxygen (defined by the federal government as “hazardous materials”) and worked on call in the evenings and on weekends. Plaintiffs sought compensation for the on-call time they spent resolving…

Grodensky v. Artichoke Joe’s Casino, 171 Cal. App. 4th 1399 (2009)

Card dealer Harvey Grodensky filed a putative class action challenging a mandatory tip-pooling policy that Artichoke Joe’s Casino had implemented for its dealers. The trial court determined (and the Court of Appeal affirmed) that the casino had not violated the minimum wage law by the tip-pooling arrangement but had violated Labor Code §…

The Nethercutt Collection v. Regalia, 172 Cal. App. 4th 361 (2009)

Michael Regalia sued The Nethercutt Collection for wrongful termination and slander after he was terminated as its president. The jury rejected the wrongful termination claim, but awarded Regalia $750,000 in damages for “assumed harm” to his reputation arising from two statements attributable to the employer: (1) that Regalia had demanded a commission or…

World Fin. Group, Inc. v. HBW Ins. & Fin. Services, Inc., 172 Cal. App. 4th 1561 (2009)

WFG filed a complaint against its direct competitor, HBW, and six of its agents for alleged breach of contract, misappropriation of trade secrets, conversion, unfair competition, interference with prospective economic advantage and unjust enrichment. In response, HBW filed a motion to dismiss the complaint as a SLAPP…