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User ID: enrondlr PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Sunday, November 25, 2001 11:14 PM To: BNA Highlights Subject: Nov. 26 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents November 26, 2001 ______________________________ ISSN 1522-5968 __________ HIGHLIGHTS __________ SCALIA CONTROVERSY COULD DELAY NLRB NOMINATIONS Resistance in the Senate to moving on the controversial nomination of Eugene Scalia as labor solicitor could delay approval of nominees to the National Labor Relations Board, GOP sources tell BNA. Senate Republicans are pushing for a floor vote on President Bush's pick for the Labor Department's top legal post, but several Democrats are protesting the nomination. Before lawmakers adjourned for the week-long Thanksgiving recess, Senate Republicans thwarted an attempt from the Democrats to unanimously approve the nomination of Dennis P. Walsh (D) to the NLRB, according to a GOP aide. While Republicans have no substantive objection to Walsh as an NLRB member, they are insisting on a floor vote for Scalia before other labor-related nominations are considered, sources say. Threats to hold up NLRB nominations are "not going to advance the debate" on Scalia, according to a spokesman for Sen. Kennedy (D-Mass.), chairman of the committee with jurisdiction over labor-related nominees. An aide to Senate Majority Leader Daschle (D-S.D.) tells BNA that several Democrats who are not on the Labor Committee have expressed concerns about Scalia and want to research his positions before allowing his nomination to come to the floor. . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7g8x1_ GEORGIA COURT OVERTURNS $45 MILLION AWARD IN BREACH OF CONTRACT SUIT Overturning a $45 million judgment for a sales representative who was fired without being paid commissions, base pay, severance pay, and company stock, the Georgia Court of Appeals orders a new trial on damages for breach of an employment contract but not various tort claims ("ServiceMaster Co. v. Martin, "Ga. Ct. App., No. A01A1093, 11/15/01). As a sanction for ServiceMaster's discovery abuse, the trial court entered a default judgment for Ray Martin on liability for breach of contract and tort claims. A jury awarded Martin over $1 million in compensatory damages, prejudgment interest, and attorneys' fees and $135 million in punitive damages. The trial court, however, reduced the compensatory damages amount to $461,000 and the punitive damages to $45 million. The appeals court rules that the default resulted in ServiceMaster admitting to all the well-pleaded allegations in the complaint but did not bar the company from showing that Martin could not recover on certain theories even if the factual allegations were admitted. The appeals court decides that the admitted facts establish the company's liability for breach of contract but not for tortious interference with property, breach of duty, or fraud. Punitive damages are not available for breach of contract. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r8g2_ PROSPECTS DIM FOR CHANGES TO FLSA COMPANIONSHIP EXEMPTION Numerous concerns have been raised about a Clinton administration proposal to broaden Fair Labor Standards Act coverage of domestic service employees who provide certain "companionship services," dimming chances for final action on the plan. Among concerns are those raised by the Bush Small Business Administration, which asserts that the Labor Department did not meet its obligations under the Regulatory Flexibility Act when it analyzed the impact the proposal would have on small businesses. There is not "enough information to provide an adequate basis to support a finding" that the proposal would not have a significant economic impact on a substantial number of small entities, the agency says Employers in the home health care industry are stridently resisting the change. In comments to the Labor Department, they insist that the current regulations interpreting the companionship services exemption are legally valid and reflect the intent of Congress when it amended the FLSA to provide for the exemption. However, the Service Employees International Union, whose members include workers who provide in-home personal care, contends that the current definition of companionship services is "clearly inconsistent" with the FLSA because it defines such services to "include an unlimited amount of ordinary domestic services." . . . Page C-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y4d0b7_ DOL OFFICIALS GRANTED IMMUNITY IN LONGSHORE CASE A disgruntled marine machinist whose former employer was challenging his entitlement to benefits under the Longshore and Harbor Workers Compensation Act cannot sue the Labor Department's Office of Administrative Law Judges or members of its Benefits Review Board for rulings they made in the course of considering the challenge, the U.S. District Court for the Northern District of California rules ("Olsen v. Herman, "N.D. Cal., No. 00-3165 MMC, 10/31/01). "ALJs and judges serving on the BRB are entitled to absolute immunity for performing judicial acts," the court says. The court also bars charges against a district director with the Labor Department's Office of Workers' Compensation Programs who was involved in the proceedings. The charges were brought by Tom Olsen, who was injured while working as a machinist aboard a vessel and awarded compensation for permanent and total disability under the longshore law. Olsen's former employer, Triple A Machine Shop Inc. subsequently initiated review proceedings under the law, claiming that Olsen's physical condition and employment status had changed since he was awarded benefits. The review was referred to a Labor Department administrative law judge, a move that Olsen resisted and prompted the suit against the DOL officials. . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r2n1_ SEVENTH CIRCUIT NIXES OFFICER'S FREE SPEECH CLAIMS, $175,000 AWARD A jury should not have awarded a city police officer $175,000 on her claim that she was fired in violation of her right to free speech, the Seventh Circuit rules, reversing a district court's grant of judgment for Draphy Durgins in her suit against the city of East St. Louis, Ill. ("Durgins v. East St. Louis, " 7th Cir., Nos. 00-3271, 00-3486, 11/16/01). Durgins had pressed for the discipline of two fellow officers in a horseplay incident and subsequently was fired for resume fraud. Finding that Durgins failed to raise a First Amendment Claim, Judge Easterbrook notes that communications about personnel matters are not covered by the First Amendment. Even if they were covered, he says, "resume fraud is not protected speech." The court also finds that Durgins's claims should have been dismissed at the outset because she split her theories between state and federal courts instead of seeking a consolidated proceeding. . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y6e0v0_ ________________ ALSO IN THE NEWS ________________ SEXUAL ORIENTATION: The Maryland Antidiscrimination Act, adding protection based on sexual orientation to the state's employment discrimination laws, is in effect after representatives of the TakeBackMaryland coalition say they did not have enough valid signatures to force a referendum vote. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r2b1_ SERVICES: About 98 percent of employment growth between 1998 and 2008 will be in the service sector, according to a report by the AFL-CIO's Department for Professional Employees. The report, "The Service Sector: A Statistical Portrait, 2000 Edition", says that by 2008, 119.6 million Americans will be employed in the service sector. . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8t0t1_ WAGE & HOUR: Three New York City green-grocers agree to pay a total of $315,000 to settle a lawsuit alleging that they failed to pay minimum wage and overtime to workers in small neighborhood stores. . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8u6f3_ POSTAL WORKERS: The U.S. Postal Service and the National Association of Letter Carriers agree to extend their current contract beyond a Nov. 20 expiration until sometime next year. Relevant terms of the current contract will remain in full force for some 241,000 city delivery letter carriers in the United States and its territories until a new contract is reached, the union announces. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8p7t1_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS LABOR DEPARTMENT Resistance in Senate to acting on nomination of labor solicitor nominee Eugene Scalia could affect speed with which NLRB nominations are approved . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7g8x1_ ____ NEWS ____ EMPLOYMENT CONTRACTS Overturning $45 million judgment for sales representative fired without being paid commissions, base pay, severance pay, and company stock, Georgia Court of Appeals orders new trial on damages for breach of employment contract . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r8g2_ ERISA Former chief executive officer's conviction and sentence for pension plan embezzlement, money laundering, and creating false plan documents is affirmed by Second Circuit . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7a0b4_ FOOD PROCESSING Austin, Minn.-based Hormel distributes $12.2 million in profit-sharing to employees companywide . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r3b4_ FREE SPEECH Jury should not have awarded city police officer $175,000 on her claim that she was fired in violation of her right to free speech, Seventh Circuit rules . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y6e0v0_ HOTEL EMPLOYEES With little more than a week remaining before expiration of citywide hotel contract, president of local hotel workers union is arrested in Thanksgiving Eve dispute over distribution of free turkeys . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r8e7_ LABOR DEPARTMENT Disgruntled marine machinist whose former employer was challenging his entitlement to benefits under Longshore and Harbor Workers Compensation Act cannot sue Labor Department's Office of Administrative Law Judges or members of its Benefits Review Board for rulings they made in course of considering challenge, federal district court rules . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r2n1_ PENSIONS Average tax code Section 401(k) plan account balance for nearly 12 million participants in Employee Benefit Research Institute/Investment Company Institute 401(k) database is $49,024 at end of 2000 . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8e5b6_ POSTAL WORKERS U.S. Postal Service and Letter Carriers agree to extend current contract until sometime next year . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8p7t1_ SAFETY & HEALTH OSHA's draft compliance directive for new safety standard on steel erection includes overview of standard, questions and answers about enforcement, definitions of steel erection terms, and photos of industrial equipment . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8u1u1_ SERVICES Approximately 98 percent of employment growth between 1998 and 2008 will be in service sector, according to AFL-CIO's Department for Professional Employees . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8t0t1_ SEXUAL ORIENTATION California state judge orders new trial and reverses $945,000 jury award to former San Jose police officer who alleged she was discriminated against on basis of sexual orientation . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7u1x5_ STATE LAWS Maryland law adding protection based on sexual orientation to state's employment discrimination laws takes effect after opponents concede they do not have enough valid signatures to force referendum vote . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r2b1_ TAXES Rep. Houghton (R-N.Y.), chairman of House Ways and Means Oversight Subcommittee, repeats opposition to Treasury Department proposal to collect Social Security and unemployment taxes on exercise of statutory stock options . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8j1n1_ UNEMPLOYMENT INSURANCE Two elderly individuals who received personal health care services in their homes are employers of home care workers providing those services and are liable for unemployment insurance contributions on behalf of workers, Missouri Court of Appeals determines . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8g0q5_ WAGE & HOUR Three New York City green-grocers agree to pay $315,000 to settle lawsuit alleging they failed to pay minimum wage and overtime to workers in small neighborhood stores . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8u6f3_ __________________________ ANALYSIS & PERSPECTIVE __________________________ FLSA Numerous concerns are raised about proposal to broaden Fair Labor Standards Act coverage of domestic service employees who provide certain "companionship services" . . . Page C-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y4d0b7_ _______ JOURNAL _______ MEETINGS Calendar of meetings, courses, and seminars . . . Page Z-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w9y3v9_ ______________ TABLE OF CASES ______________ Durgins v. East St. Louis (7th Cir.) . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y6e0v0_ Goodman v. San Jose (Cal. Super. Ct.) . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7u1x5_ Klausner v. Brockman (Mo. Ct. App.) . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8g0q5_ New York v. Far East Produce (N.Y. Sup. Ct.) . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8u6f3_ Olsen v. Herman (N.D. Cal.) . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r2n1_ ServiceMaster Co. v. Martin (Ga. Ct. App.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8r8g2_ United States v. McCarthy (2d Cir.) . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y7a0b4_ ___________________________________________________________ Daily Labor Report (ISSN 1522-5968) Highlights are published daily by The Bureau of National Affairs, Inc., 1231 25th St., NW, Washington, DC 20037. Registered Web subscribers can access the full text of these articles by using the URL link supplied. To register for a FREE Web trial, go to http://web.bna.com. For subscription information and other inquiries, call BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET), excluding most federal holidays. To request retransmission or to order a copy of the summarized article, contact 1-800-452-7773 or e-mail bnaplus@bna.com. For copyright guidelines, go to http://www.bna.com/corp/copyright. Copyright © 2001 by The Bureau of National Affairs, Inc. Washington, D.C. 20037. Use of this service is subject to the terms and conditions of the license agreement with BNA. Unauthorized access or distribution is prohibited.
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