FLSA--What is Compensable Work??

As labor/employment practitioners know, the Fair Labor Standards Act, governing the payment of minimum wages and overtime, is silent as to the definition of "work."  In the Spring 2011 issue of the ABA Journal of Labor and Employment Law, Richard Alfred and Jessica Schauer argue that recent case law and a Department of Labor (DOL) Administrator's Interpretation has potentially opened the floodgate for claims regarding de minimus but arguably "integral and indispensible" activities, such as checking or sending emails, prior to the start of  the workday.  See  Alfred and Schauer,

Bargaining with Minority Unions

In the Fall 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 27 No. 1, authors Catherine Fisk and Xenia Tashlitsky urge us to "Imagine a World Where Employers are Required to Bargain with Minority Unions." The authors observe that while case law says it cant be done, that is not an inevitable conclusion based on statutory language.  They also see many potential benefits in such a requirement.

Workplace Concerns Arise Even in Rarified Quarters

In 2009, Model Sara Ziff issued a documentary, Picture Me, which was five years in the making.  In it, Ziff covertly captured the seedy side of the fashion modeling industry, where young girls are often required to work incredibly long hours, denied or mislead about compensation, and are routinely subject to sexual harassment and even assault.  In 2012, Ziff has launched the Model Alliance, in conjunction with the Fordham University’s Fashion Law Institute.  The Alliance is “an advocacy group aimed at improving

Survey of NLRB Shifts Analyzed and Found Wanting

In 2010, I wrote about a survey of changes to NLRB precedent, written by G. Roger King and publishes in the Fall 2010 issue of the ABA Journal of Labor and Employment law. Mr. King's analysis revealed that over a comparable course of years (5-7), the Clinton Board reversed 1,181 years of prior precedent while the Bush II Board issued reversed only 295 years of precedent.  Additionally, King noted that "the federal circuit court affirmance rate of the Bush II Board decisions was either equal to or greater than the circuit court affirmance rate of the Clinton Board."  Specifically, Clinton decisions were enforced in full 66.8% of the time, and in part 81.5% of the time.  In contrast, Bush II decisions were enforced in full 77.9% of the time and in part 87.9% of the time.   

In the Vol. 26, No. 3 of the Journal, Associate General Counsel of the AFL-CIO, Bill Lurye, reviews King's data and the decisions, and concludes they were "prove[d] susceptible to interpretation and vulnerable to manipulation."  Lurye also advises that "a mathematical

Mediating Workplace Bullying Claims

As I have previously written, bullying is a hot topic today.   Cleaning House and Cleaning Up Our Acts - Anti-Bullying Legislation, and Bullying Legislation, Revisited.  As such, it is natural for alternative dispute resolution (ADR) practitioners to move into this field.  However, caution should be used in doing so, and practitioners should consider in each case whether mediation is appropriate and, if so, what it should look like.

In the Fall 2011 issue of the ACR Conflict Resolution Quarterly, Vol. 29 No. 1, Moira Jenkins asks Is Mediation Suitable for Complaints of Workplace Bullying? Although she herself does not appear to come to any firm conclusions, the article raises a number of helpful points to be considered by managers and individual ADR practitioners consider the issue.  First, as Ms. Jenkins observes, bullying is often not well defined, and in the workplace bullying may be confused with a number of other activities that are similar but nonetheless distinct. 

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice.  As a result, I am woefully behind on my blogs, with a pile of items to review and write up.  I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up.  In any event, here is a belated summary of recent New Mexico employment law cases.

Dangers of EEOC Class Member Communication

In the Fall 2011 ABA Journal of Labor and Employment Law, Vol. 27, No. 1, Fall 2011, Christopher Lage writes abut Avoiding and Dealing with Unethical Communications with Putative Class Members in Systemic Cases.  The article is timely because there has been a dramatic Increase Equal Employment Opportunity Commission (EEOC) systemic cases since the EEOC launched its 2006 initiative concerning these types of claims.  Although the flow may slow a bit after the Wal-Mart v. Dukes case, at least for very