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Plus, the Biden administration is trying to quash a lawsuit that threatens to
undermine its rulemaking plans to expand overtime protections.

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Daily Labor Report ®
Monday, April 10, 2023

Inside:    Leading the News    Discrimination    Wage & Hour    Retaliation   
Labor Relations    Insights    Workplace Safety    Health & Benefits    Also in
the News    Latest Cases    Companies & Law Firms


UNIONS REPORT KEY MEMBERSHIP GAINS IN 2022, FEDERAL FORMS SHOW

Several big US unions saw major membership gains in 2022, according to a
Bloomberg Law analysis of federal filings from the previous calendar year.

Who’s Winning: The federal disclosures show which unions are flourishing and
which are struggling in the post-pandemic economy. More than two dozen of
roughly 50 groups surveyed notched membership gains, including the Teamsters and
United Auto Workers, which saw increases of 20% and 3%, respectively. The unions
are separately gearing up for major contract negotiations with UPS and Detroit
automakers later this year.

Drop in Numbers: Other groups didn’t fare so well. The International
Longshoremen’s Association, which represents workers at East Coast ports, lost
3% of its membership. The Brotherhood of Locomotive Engineers and Trainmen shed
5.6% of its membership.

Despite key gains, union density nationwide fell to a historic low of 10.1% last
year as nonunion jobs grew at a 4% clip, double the rate of union jobs. Read
More





LEADING THE NEWS

Column


PUNCHING IN: DOL DEFENDS ITS AUTHORITY TO REGULATE OVERTIME PAY

Documents Attached

Attorneys for the US Labor Department are defending a Trump-era update to
overtime rules to preserve the agency’s authority to regulate OT. Meanwhile,
states and New York City are pursuing legislation to expand anti-discrimination
statutes. Read More


ABORTION PILL TO BE BLOCKED NATIONWIDE UNDER JUDGE’S ORDER

Competing orders issued Friday by a pair of federal judges on the FDA’s approval
of mifepristone potentially sets up another politically seismic abortion ruling
a year after the U.S. Supreme Court overturned Roe v. Wade. Read More


TELEWORK DRIVES HARD LOOK AT FEDERAL OFFICE SPACES FOR SAVINGS

The federal government’s pivot to telework in response to the Covid-19 pandemic
is fundamentally reshaping long-term agency spending plans for office buildings,
parking garages, warehouses, and other physical assets and amenities. Read More


FORMER TREASURY OFFICIAL DEFENDS LABOR AGENCY’S 401(K) ESG RULE

Documents Attached

Lawsuits challenging the Biden administration’s new regulation allowing socially
conscious retirement investing are invalid because they hinge on fundamental
misunderstandings of the policy, according to a former senior Treasury official.
Read More


STARBUCKS ILLEGALLY THREATENED UNION ORGANIZERS, NLRB JUDGE SAYS

Document Attached

Starbucks Corp. illegally interrogated workers at a store in Minnesota about
their union activities, a National Labor Relations Board judge ruled. Read More


UNION ELECTION, CHARGE FILINGS SURGE MOST SINCE ‘50S, NLRB SAYS

Document Attached

The number of workers seeking union representation and filing unfair labor
practice charges against their employers is increasing at a rate unseen since
the 1950s, according to the National Labor Relations Board. Read More


MINE SAFETY REVIEW PANEL ‘CLEARLY IGNORED’ FACTS, D.C. CIR. SAYS

Documents Attached

A federal appeals court has excoriated a lower review panel for its decision to
vacate an 11-year-old mine safety violation and told the panel to take a second
look at whether to dismiss the citation. Read More


CHALLENGERS TO NEW JERSEY SEVERANCE PAYMENT LAW LACK STANDING

Documents Attached

An industry group claiming its members would be harmed by New Jersey’s mandated
severance law isn’t in a position to sue about it, a federal judge decided
Thursday. Read More


MCDONALD’S REDUCES SOME EMPLOYEES’ COMPENSATION AMID JOB CUTS

McDonald’s Corp. reduced some employees’ compensation and titles as part of the
restructuring this week that cost hundreds of workers their jobs, according to a
person familiar with the situation. Read More


CONGRESS COULD BE YOUR NEXT WORKPLACE RETIREMENT PLAN SPONSOR

A renewed congressional push to set up federally sponsored automatic individual
retirement accounts for private-sector workers comes as states have increasingly
moved to guarantee workplace retirement savings.

Brighter Prospects: Sens. John Hickenlooper (D-Colo.) and Thom Tillis (R-N.C.)
are co-sponsoring legislation to launch a federally supported auto-IRA program
that would match worker contributions with Treasury-backed funds and would be
exempt from burdensome nondiscrimination testing and disclosure requirements
employers face annually. Unlike state-sponsored retirement savings plans, the
federal proposal wouldn’t face claims of preemption by the Employee Retirement
Income Security Act. Proponents say the bill could be introduced in the coming
weeks and that growing Republican support for it makes passage this session a
real possibility.

Disruption Debate: Supporters of a federal program say it would boost retirement
plan mobility as workers switch jobs and create opportunities for independent
contractors and gig workers to save. But critics say federal intervention could
upset the balance between public- and private-sector retirement savings, as the
$14.8 trillion workplace savings industry would struggle to compete with
Congress’ financial resources and benefit lawmaking power. Austin R. Ramsey has
the story. Read More






J&J TALC SUITS' OUTSIDE FUNDERS UNVEILED VIA LITTLE USED NJ RULE

Outside funders put up cash in exchange for a stake in hundreds of claims in the
ongoing legal battle against Johnson & Johnson over baby products said to cause
cancer.

The litigation funders have been unmasked under a New Jersey federal court’s
disclosure rule that took effect in June 2021. Since then, litigants have
flagged outside funding in nine cases.

J&J has proposed $8.9 billion to settle the talc litigation as part of its
latest bankruptcy bid to limit the lawsuits’ impact.

Read More


DISCRIMINATION


RETIRED CALIFORNIA JUDGES CAN’T FORCE RECUSAL IN AGE BIAS SUIT

Document Attached

Retired California judges Friday unsuccessfully urged one of their own to
disqualify himself and to keep alive their lawsuit alleging that the amount of
time they were allowed work on temporary assignments to the bench discriminated
based on age. Read More


NORTHWESTERN DEFEATS MEDICAL LAB WORKER’S EMPLOYMENT CLAIMS

Documents Attached

Northwestern University Friday held onto its win against a medical lab worker
who alleged claims for hostile work environment harassment and retaliation. Read
More


MAYO CLINIC CANCER SURGEON AGREES TO DISMISS PREGNANCY BIAS SUIT

Documents Attached

A breast cancer surgeon agreed to dismiss her claims that the Mayo Clinic
violated federal and Minnesota leave and anti-discrimination laws when it failed
to promote her following her pregnancy, effectively ending her employment. Read
More


CHRISTIAN TEACHER FAILS TO SHOW BIAS IN STUDENT PRONOUN RULE

Documents Attached

An Indiana school district’s requirement that a Christian teacher comply with
its policy of honoring the preferred names and pronouns of transgender students
didn’t violate his religious rights, a divided Seventh Circuit ruled Friday.
Read More


BLISS HAVEN DEFEATS EX-WORKER’S DISABILITY BIAS LAWSUIT, FOR NOW

Documents Attached

Bliss Haven Inc. scored the dismissal, at least for now, of a former worker’s
lawsuit alleging the care provider discriminated against her due to her
disability, a federal court in Illinois ruled. Read More


LAS VEGAS HOTEL AND CASINO SUED FOR DISABILITY DISCRIMINATION

Documents Attached

Downtown Grand Hotel & Casino is facing a disability discrimination and
retaliation lawsuit after allegedly failing to provide reasonable accommodations
to a class of workers in Las Vegas, according to EEOC Thursday. Read More


WAGE & HOUR


TEMP WORKER REACHES DEAL TO END STAFFING FIRM, CLIENT WAGE SUIT

Documents Attached

A temporary worker’s $20,000 deal with a staffing firm and its client, both
accused of stiffing her on overtime, started off strong after a federal judge
indicated the settlement’s approval is likely. Read More


ANTHEM BEATS OVERTIME LAWSUIT AFTER WORKER’S BANKRUPTCY ISSUES

Documents Attached

Anthem Cos. is free of allegations that it owes employees overtime after the
worker who filed the suit failed to disclose the wage-and-hour claims as part of
her bankruptcy proceedings. Read More


RETALIATION


EX-OFFICER WINS APPEAL IN SPEECH SUIT OVER FLAGGING INMATE ABUSE

Documents Attached

An former Oklahoma prison officer saw her free speech retaliation lawsuit over
her firing against the prison revived by the 10th Circuit on Friday. Read More


FIRED FERTILITY DOCTOR TOO LATE WITH VIRGINIA WHISTLEBLOWER SUIT

Documents Attached

An OB/GYN who says she was terminated for seeking leave to care for her ailing
mother and for complaining about gender and caregiver bias missed her chance to
sue under Virginia whistleblower law. Read More


LABOR RELATIONS


LA, LONG BEACH PORT TERMINALS REOPEN AS DOCKWORKERS RETURN

Normal operations resumed at the Ports of Los Angeles and Long Beach, as
dockworkers returned to container terminals for the Friday evening shift. Read
More


APPLE EXTENDS PUSH TO KEEP STORES FROM UNIONIZING: POWER ON

Apple Inc.’s attempts to keep its stores from unionizing are continuing, with
the iPhone maker looking to avoid the kind of labor inroads seen at companies
like Amazon.com Inc. and Starbucks Corp. Read More


INSIGHTS


PERSPECTIVES FROM LEGAL PRACTITIONERS, LAW PROFESSORS AND OTHER THOUGHT LEADERS


STATES START TO REGULATE AI-BASED HIRING WITHOUT FEDERAL GUIDANCE

By Paul Daugherity, Bruce Liebman, and Kevin Yombor of Kaufman, Dolowich &
Voluck

States are moving to regulate use of artificial intelligence to prevent bias and
ensure applicants’ consent, while the federal government has been sluggish about
issuing guidance, Paul Daugherity, Bruce Liebman, and Kevin Yombor of Kaufman,
Dolowich & Voluck say. Read More


WORKPLACE SAFETY


DOLLAR GENERAL FINED $245,000 FOR MORE OSHA SAFETY VIOLATIONS

Document Attached

Dollar General Corp. has once again allegedly exposed workers to dangerous
safety hazards, and has been cited with one willful and one repeat violation and
proposed penalties of $245,544, the DOL announced Friday. Read More


HEALTH & BENEFITS


BECERRA SAYS ‘EVERY OPTION’ BEING WEIGHED AFTER ABORTION RULING

The Biden administration is weighing every option to strike down a “reckless”
ruling by a federal judge in Texas that suspended a US approval of a key drug
used in medication abortions, Xavier Becerra, the Secretary of Health and Human
Services, said on Sunday. Read More


YALE LOSES EMERGENCY BID TO AVOID JURY TRIAL IN RETIREMENT SUIT

Documents Attached

Yale University lost its bid for a quick appeal after a Connecticut federal
judge authorized a jury trial in a class action over the university’s retirement
plan. Read More


NJ TEACHER OWED PAID SICK LEAVE AFTER EXPOSURE TO NEPHEW’S COVID

Opinion Attached

New Jersey’s paid sick leave law covers a teacher who was excluded from her
school for eight workdays after being exposed to Covid-19 by a nephew at a
family function, a state appeals court said. Read More


EX-GERRESHEIMER GLASS WORKER ENDS COVID QUARANTINE FIRING SUIT

Documents Attached

A former employee of Gerresheimer Glass Inc. has settled a lawsuit stemming from
her Covid-19-related quarantine and failed attempt to return to work after she
recovered. Read More


BURBANK ELECTRICAL CONTRACTOR LOSES UNPAID BENEFITS CLASS ACTION

Documents Attached

Burbank Electrical Contractor Inc. is liable for unpaid contributions to its
workers’ retirement and health plans, a federal court in New York ruled. Read
More


COLUMNIST CORNER

IN HER LATEST Unfiltered column, Vivia Chen interviews Sidley Austin chair
Yvette Ostolaza as part of a series about women law firm leaders. Ostolaza’s
career path stands out: She is the only Latina to lead a firm in the top 10 for
gross revenue.

Sidley got flak for tying bonuses to return to office stats. Vivia asked if
people expected a female leader to be a stronger advocate for flexible work
arrangements.

“We were latecomers, based on client feedback and what our associates told us,”
Ostolaza replied. “We did this because clients are back in the office. I
personally saw some mental health issues from being away from people for long
periods of time. There’s something to being present and normalcy. Work is a good
place to be!” Read More


ALSO IN THE NEWS


PROSKAUER CYBER ATTACK LEFT SENSITIVE CLIENT DATA UNGUARDED

A data breach at Proskauer Rose exposed client data, including sensitive legal
and financial information, the law firm confirmed Friday. Read More


JOB MARKET SOFTENS ONLY A BIT, KEEPING FED ON TRACK FOR MAY HIKE

US payrolls rose at a firm pace last month with the unemployment rate dropping
again near record lows, paving the way for the Federal Reserve to increase
interest rates at its next meeting. Read More


IRS MAY ONLY USE ‘DEPOSIT’ AS PAYMENT IF PENALTIES WERE ASSESSED

Documents Attached

The IRS must figure out whether it satisfied a notice requirement concerning
penalties against a taxpayer before it applied the money he sent toward the
penalties, the Third Circuit ruled Friday. Read More

Opinion


AI-PROOFING YOUR CAREER STARTS IN COLLEGE: ALLISON SCHRAGER

The job market has never offered any guarantees. Mechanization wiped out
once-secure careers in manufacturing. Now artificial intelligence (AI) is coming
for a future generation of jobs that had seemed safe, starting with software
coding and back-office work. So how can college students prepare? Read More


LATEST CASES


CASE: LABOR ARBITRATION/WORK ASSIGNMENTS (ARB.)

Document Attached
City of Tallmadge, 2022 BNA LA 533, Arb., 2021-001, G. Szuter, 12/5/22

Arbitrator Gregory P. Szuter ruled that the city of Tallmadge violated its CBA
when it used the article 23.02 on-call list—that assigned each team member to
three or four days on the list without regard to seniority—to select a police
officer to fill a one-day staff shortage, instead of assigning the most junior
officer. City of Tallmadge, 2022 BNA LA 533, Arb., 2021-001, G. Szuter, 12/5/22
Read More




COMPANIES

Mentioned in this issue
Amazon.com Inc
Apple Inc
Dollar General Corp
JPMorgan Chase & Co
McDonald's Corp
Morgan Stanley
Starbucks Corp


LAW FIRMS

Mentioned in this issue
Cohen and Wolf
Covington & Burling
Cozen O'Connor
Fredrikson & Byron
Hunton Andrews Kurth
Jackson Lewis PC
Jones Day
Kaufman Dolowich & Voluck
Littler Mendelson
Mayer Brown
Morgan Lewis
Proskauer Rose
Schlichter Bogard & Denton
Seyfarth Shaw

1801 South Bell Street, Arlington, VA 22202
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