LABOR AND THE LAW:

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law
(LEL) © 2008

Breach of Duty of Loyalty Applies to Unions and Their Employees
While employed, an employee may not compete with his employer by working for a competitor and may not soliciting fellow employees or customers to switch to the competitor. These acts violate the common law duty of loyalty. After employment ends, though, all these actions are permissible. In addition, while still employed an employee may make preparations to work for a competitor or to start a competing business without violating the duty of loyalty. An employee who breaches the duty of loyalty must repay any pay received during any period of disloyalty
In a recent case, two union employees who were unhappy with their employer-union decided to start a competing union. While still employed, they launched a competing union and started a drive to decertify the union and take its place as the bargaining representative. In addition, their job duties included inform their union-employer about problems among the members. This, they did not do. One even stalled negotiations so no new agreement would be reached. They also recruited shop stewards to gather signatures for a decertification petition. Eventually the new union became the representative. Service Employees International Union, Local 250 v. Torren Colcord, Case No.A116364 (Cal. Ct. App. Feb.22, 2008).
The union sued for: (1) breach of fiduciary duty under the Labor Management Reporting and Disclosure Act (LMRDA) (29 U.S.C. § 501), and under common law; (2) fraudulent concealment; (3) unfair business practices; and (4) misappropriation of trade secrets. In this case, the union asked for remedies that included recovering the salaries paid while the former employees were secretly organizing the new union, costs involved in the elections, and punitive damages. The court of appeals held that the union was entitled to recoup only the salaries and punitive damages, because the other damages were not necessarily caused by the disloyal conduct.

Two Cases in Which Noncompete Agreements Were Held to be Invalid
Employers try to forestall the sort of situation just discussed by using noncompete and nonsolicitation of employees and customer agreements. A valid noncompete agreement would have forbidden the organizers from working for a competing employer for a limited time, geographic area, and business. Care must be taken in drafting noncompete agreements, because they have an anti-competitive effect. As a result, courts traditionally construe them strictly and strike them down if they are not limited to protecting the employer’s legitimate business interests. Legitimate business interests include protecting trade secrets and confidential information, as well as some investments.
In a recent case, an employer lost its breach of contract case against a former employee, because the contract extended the two-year term for each violation of the noncompete and nonsolicitation agreement. In effect, the noncompete agreement had terms that were indefinite in duration. As a result, the court held that the contract was void and unenforceable. H&R Block Eastern Enters. v. Swenson, Case No.2006AP1210 (Wis. Ct. App. Dec. 20, 2007).
In a second case, the court refused to enforce a two-year noncompete and nonsolicitation agreement, because they included a provision that would extend the term length if there was a breach within the two years. The court concluded that these contracts were unreasonably broad, because they did not protect a legitimate interest of the employer. The employees involved did not perform extraordinary services for the employer, did not have access to trade secrets or confidential information, and had no special relations with customers whom they might be able to solicit to join a new business. Zinter Handling Inc. v. Britton, 847 N.Y.S.2d 271 (N.Y. Super.Dec. 6, 2007).

Matthew Altomare, Comment: Applying the Reorganization Test to Pension Plans in the Aggregate: Was the Third Circuit Correct? 32 Del. J. Corp. L. 843 (2007)

Louise Arbour, Economic and Social Justice for Societies in Transition, 40 N.Y.U. J. Int'l L. & Pol. 1 (2007)

Sameer Ashar, Public Interest Lawyers and Resistance Movements, 95 Cal. L. Rev. 1879 (2007)

Stephen Bainbridge, The Shared Interests of Managers and Labor in Corporate Governance: A Comment on Strine, 33 J. Corp. L. 21 (2007)

Richard Bales, Beyond the Protocol: Recent Trends in Employment Arbitration, 11 Employee Rts. & Emp. Pol'y J. 301 (2007)

Mitchell Berman, On the Moral Structure of White Collar Crime, a review of Stuart P. Green, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime, 5 Ohio St. J. Crim. L. 301 (2007)

Nancy Bloodgood & Leslie Whitten, The Current Status of Workers' Compensation Hearing Loss Claims in South Carolina: A Defense Perspective, 2 Chas. L. Rev. 257 (2007)

Deborah Brake, Perceiving Subtle Sexism: Mapping the Social-Psychological Forces and Legal Narratives That Obscure Gender Bias, 16 Colum. J. Gender & L. 679 (2007)

Cynthia Blum, Rethinking Tax Compliance of Unauthorized Workers after Immigration Reform, 21 Geo. Immigr. L.J. 595 (2007)

Karla Campbell, Guest Worker Programs and the Convergence of U.S. Immigration and Development Policies: A Two-factor Economic Model. 21 Geo. Immigr. L.J. 663 (2007)

Stephen Caldas & Carl Bankston, A Re-Analysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved in Community Schools v. Seattle School District No.1, 2007 BYU Educ. & L.J. 217

Pat Chew & Lauren Kelley-Chew, Subtly Sexist Language, 16 Colum. J. Gender & L. 643 (2007)

Joonmo Cho & Kyu-Young Lee, Deregulation of Dismissal Law and Unjust Dismissal in Korea, 27 Int'l Rev. L. & Econ. 409 (2007)

Tony Cole, Commercial Arbitration in Japan: Contributions to the Debate on "Japanese Non-Litigiousness", 40 N.Y.U. J. Int'l L. & Pol. 29 (2007)

Alexander Colvin, Empirical Research on Employment Arbitration: Clarity Amidst the Sound and Fury? 11 Employee Rts. & Emp. Pol'y J. 405 (2007)

Matt Crotty, The Uniformed Services Employment and Reemployment Rights Act and Washington State's Veteran's Affairs Statute: Still Short on Protecting Reservists from Hiring Discrimination, 43 Gonz. L. Rev. 169 (2007/08)

Scott Cummings, Law in the Labor Movement's Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight. 95 Cal. L. Rev. 1927 (2007)

Xizafeng Da, Note: Education and Labor Relations: Asian Americans and Blacks as Pawns in the Furtherance of White Hegemony, 13 Mich. J. Race & L. 309 (2007)

Yasmin Dawood, The New Inequality: Constitutional Democracy and the Problem of Wealth, 67 Md. L. Rev. 123 (2007)

Mark Debofsky, What Process Is Due in the Adjudication of Erisa Claims? 40 J. Marshall L. Rev. 811 (2007)

Lea Delossantos, Comment: A Tangled Situation of Gender Discrimination: in the Face of an Ineffective Antidiscrimination Rule and Challenges for Women in Law Firms – What Is the next Step to Promote Gender Diversity in the Legal Profession? 44 Cal. W. L. Rev. 295 (2007)

Adrienne Detanico, Comment: Banning Smoking in Chicago's Social Scene: Protecting Labor and Broadening Public Health Policy, 40 J. Marshall L. Rev. 1063 (2007)

Carol Docan & Richard Sperling. California's Domestic Partnership Law: Incremental Progress or Dramatic Social Change? 14 Wm. & Mary J. Women & L. 153 (2007)

Jacquelin Drucker, The Protocol in Practice: Reflections, Assessments, Issues for Discussion, and Suggested Actions, 11 Employee Rts. & Emp. Pol'y J. 345 (2007)

Andrew Elmore, Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-Subordination Approach to the Labor-based Admission of Nonprofessional Foreign Nationals, 21 Geo. Immigr. L.J. 521 (2007)

Emma Eriksson, Note: The Pension Protection Act of 2006: Is it Too Late to Save Traditional Pension Plans? 41 Suffolk U.L. Rev. 133 (2007)

Albert Feuer, Who Is Entitled to Survivor Benefits from Erisa Plans? 40 J. Marshall L. Rev. 919 (2007)

Matthew Finkin, Disloyalty! Does Jefferson Standard Stalk Still? 28 Berkeley J. Emp. & Lab. L. 541 (2007)

Charles Fleischer, Validity and Effect of Will-Not-Reapply Covenants in Employment Discrimination Settlement Agreements. 23 Lab. Law. 151 (2007)

Sarah Fulton, Note: A Crack in the Stained Glass Ceiling, 14 Wm. & Mary J. Women & L. 197 (2007)

Brian Garrison & Joseph Pettygrove, "Yes, No, and Maybe:" The Implications of Federal Circuit Court Split over Union-friendly State and Local "Neutrality" Laws. 23 Lab. Law. 121 (2007)

E.L. Gaston, Note: Mercenarism 2.0? The Rise of the Modern Private Security Industry and its Implications for International Humanitarian Law Enforcement, 49 Harv. Int'l L.J. 221 (2008)

Martin Greenberg & Jay Smith, A Study of Division I Assistant Football and Men's Basketball Coaches' Contracts, 18 Marq. Sports L. Rev. 25 (2007)

Alison Guernsey, Note: Double Denial: How Both the Dol and Organized Labor Fail Domestic Agricultural Workers in the Face of H-2a, 93 Iowa L. Rev. 277 (2007)

Stephanie Hoffer, Adopting the Family Taxable Unit, 76 U. Cin. L. Rev. 55 (2007)

Dean Hubbard, Reimagining Workers' Human Rights: Transformative Organizing for a Socially Aware Global Economy, 5 Hastings Race & Poverty L.J. 1 (2008)

Cecil Hunt, No Right to Respect: Dred Scott and the Southern Honor Culture, 42 New Eng. L. Rev. 79 (2007)

James Jacobs & Dimitri Portnoi, Administrative Criminal Law & Procedure in the Teamsters Union: What Has Been Achieved after (Nearly) Twenty Years, 28 Berkeley J. Emp. & Lab. L. 429 (2007)

Daniel Johns, A Square Peg and a Round Hole: The Application of Weingarten Rights to Employee Drug and Alcohol Testing, 28 Pace L. Rev. 33 (2007)

Frederick Jonassen, A Baby-step to Global Labor Reform: Corporate Codes of Conduct and the Child, 17 Minn. J. Int'l L. 7 (2008)

John Kagel, Arbitration and Due Process: The Way We Were at the Time of Gilmer, 11 Employee Rts. & Emp. Pol'y J. 267 (2007)

Patrick Kenneally, Protecting Court Borders: Fencing Hoffman Plastic Compounds, Inc. v. NLRB out of Illinois Civil Courts, 28 N. Ill. U. L. Rev. 59 (2007)

Debbie Kaminer, The Child Care Crisis and the Work-Family Conflict: A Policy Rationale for Federal Legislation, 28 Berkeley J. Emp. & Lab. L. 495 (2007)

Richard Karcher, Fundamental Fairness in Union Regulation of Sports Agents, 40 Conn. L. Rev. 355 (2007)

Barry Kozak & Joshua Waldbeser, Much Ado about the Meaning of "Benefit Accrual": The Issue of Age Discrimination in Hybrid Cash Balance Plan Qualification Is Dying but Not Yet Dead, 40 J. Marshall L. Rev. 867 (2007)

Mary Kreiner Ramirez, Blowing the Whistle on Whistleblower Protection: A Tale of Reform Versus Power, 76 U. Cin. L. Rev. 183 (2007)

Warren Lavey, Telecom Globalization and Deregulation Encounter U.S. National Security and Labor Concerns, 6 J. on Telecomm. & High Tech. L. 121 (2007)

Konrad Lee, The Employees' Quest for Medical Record Privacy under the Family and Medical Leave Act, 41 Suffolk U.L. Rev. 49 (2007)

Michael Leroy, Compulsory Labor in a National Emergency: Public Service or Involuntary Servitude? The Case of Crippled Ports. 28 Berkeley J. Emp. & Lab. L. 331 (2007)

Wilma Liebman, Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, 28 Berkeley J. Emp. & Lab. L. 569 (2007)

Justin Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007)

Kenneth Lopatka, A Contemporary First Amendment Analysis of the NLRA Section 8(a)(2)-2(5) Anachronism, 2 Chas. L. Rev. 1 (2007)

Beth Lyon, Tipping the Balance: Why Courts Should Look to International and Foreign Law on Unauthorized Immigrant Worker Rights, 29 U. Pa. J. Int'l L. 169 (2007)

Ritu Mahajan, Comment: The Naked Truth: Appearance Discrimination, Employment, and the Law, 14 Asian Am. L.J. 165 (2007)

Martin Malin, Due Process in Employment Arbitration: The State of the Law and the Need for Self-Regulation, 11 Employee Rts. & Emp. Pol'y J. 363 (2007)

Craig Martin & Joshua Rafsky, The Pension Protection Act of 2006: An Overview of Sweeping Changes in the Law Governing Retirement Plans, 40 J. Marshall L. Rev. 843 (2007)

Michael Moberly, The Disability History Mystery: Assessing the Employer's Reasonable Accommodation Obligation in "Record of Disability" Cases, 35 Pepp. L. Rev. 1 (2007)

Kathryn Moore, A Review of Nancy J. Altman, The Battle for Social Security: from FDR's Vision to Bush's Gamble, 40 J. Marshall L. Rev. 909 (2007)

Kathryn Moore, Foreword: Employee Benefits Law Symposium, 40 J. Marshall L. Rev. Xix (2007)

Samantha Mortlock, Employee with Severely Limited Interpersonal Skills, 56 Drake L. Rev. 59 (2007)

Sheldon Nahmod, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. Rich. L. Rev. 561 (2008)

Melissa Neiman, Fair Game: Ethical Considerations in Negotiation by Sports Agents, 9 Tex. Rev. Ent. & Sports L. 123 (2007)

Joel Nolan, Note: Chipping at the Iceberg: How Massachusetts Anti- Discrimination Law Can Survive ERISA Preemption and Mandate the Extension of Employee Benefits to All Married Spouses Without Regard to Sexual Orientation, 42 New Eng. L. Rev. 109 (2007)

Daniel O'Gorman, Paying for the Sins of Their Clients: The Eeoc's Position That Staffing Firms Can Be Liable When Their Clients Terminate an Assigned Employee for a Discriminatory Reason, 112 Penn St. L. Rev. 425 (2007)

Michael Oswalt, Note: The Grand Bargain: Revitalizing Labor Through NLRA Reform and Radical Workplace Relations, 57 Duke L.J. 691 (2007)

Martha Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U. Chi. L. Rev. 1831 (2007)

Christine O'Brien & Jonathan Darrow, Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination, 42 Wake Forest L. Rev. 991 (2007)

Theodore Olsen, The Dangers of E-mail Recruiting: One Person's "Sales Pitch" Is Another Person's "Spam", 23 Lab. Law. 163 (2007)

Maria Pabon Lopez, Immigration Law Spanish-Style: A Study of Spain's Normalizacion of Undocumented Workers, 21 Geo. Immigr. L.J. 571 (2007)

Marisa Pagnattaro & Ellen Peirce, Between a Rock and a Hard Place: The Conflict Between U.S. Corporate Codes of Conduct and European Privacy and Work Laws, 28 Berkeley J. Emp. & Lab. L. 375 (2007)

Wang Ping, Coverage of the WTO's Agreement on Government Procurement: Challenges of Integrating China and Other Countries with a Large State Sector into the Global Trading System, 10 J. Int'l Econ. L. 887 (2007)

Ellen Podgor, White Collar Crime: A Letter from the Future, 5 Ohio St. J. Crim. L. 247 (2007)

Kimberlianne Podlas, Homerus Lex: Investigating American Legal Culture Through the Lens of the Simpsons, 17 Seton Hall J. Sports & Ent. L. 93 (2007)

David Pratt, The Past, Present and Future of Health Care Reform: Can it Happen? 40 J. Marshall L. Rev. 767 (2007)

Albie Sachs, Enforcement of Social and Economic Rights, 22 Am. U. Int'l L. Rev. 673 (2007)

Adam Samaha, What Good Is the Social Model of Disability? 74 U. Chi. L. Rev. 1251 (2007)

Rebecca Sandefur, Staying Power: The Persistence of Social Inequality in Shaping Lawyer Stratification and Lawyers' Persistence in the Profession, 36 Sw. U. L. Rev. 539 (2007)

Brianne Schwanitz, Note: Mixed-Motives for Firing Employees: Alaska's Inconsistent Standards and its Failure to Follow the Changing Federal Tide, 24 Alaska L. Rev. 287 (2007)

Michael Selmi, The Supreme Court's 2006-2007 Term Employment Law Cases: A Quiet but Revealing Term, 11 Employee Rts. & Emp. Pol'y J. 219 (2007)

Nathan Shelby, Note: Putting My Money Where Your Mouth Is – An Analysis of a Public Teacher's Right to Object to a Union's Use of His or Her Dues for Political Purposes in an Open Shop State, 37 U. Mem. L. Rev. 781 (2007)

Katharine Silbaugh, Women's Place: Urban Planning, Housing Design, and Work-Family Balance, 76 Fordham L. Rev. 1797 (2007)

Marisa Silezi Cianciarulo, Modern-Day Slavery and Cultural Bias: Proposals for Reforming the U.S. Visa System for Victims of International Human Trafficking, 7 Nev. L.J. 826 (2007)

Anita Silvers & Michael Stein, Disability and the Social Contract, a review of Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership, 74 U. Chi. L. Rev. 1615 (2007)

Rachael Simon, Comment: Workers on the March: Work Stoppages, Public Rallies, and the National Labor Relations Act, 56 Cath. U. L. Rev. 1273 (2007)

Larry Spurgeon, A Transcendent Value: The Quest to Safeguard Academic Freedom, 34 J.C.& U.L. 111 (2007)

Stephen Stern & Jonathan Cohen, Pleading a Sarbanes-Oxley Act Whistleblower Claim: What Is Required to Survive? 23 Lab. Law. 191 (2007)

Leo Strine, Toward Common Sense and Common Ground? Reflections on the Shared Interests of Managers and Labor in a More Rational System of Corporate Governance, 33 J. Corp. L. 1 (2007)

Alison Sulentic, Secrets, Lies & ERISA: The Social Ethics of Misrepresentations and Omissions in Summary Plan Descriptions, 40 J. Marshall L. Rev. 731 (2007)

Cass Sunstein, Cost-Benefit Analysis Without Analyzing Costs or Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms, 74 U. Chi. L. Rev. 1895 (2007)

Symposium: Working and Living in the Global Playground: Frontstage and Backstage, 7 Nev. L.J. 685 (2007)

Symposium: "Beyond the Protocol: The Future of Due Process in Workplace Dispute Resolution", 11 Employee Rts. & Emp. Pol'y J. 255 (2007)

Symposium: Race, Economic Justice, and Community Lawyering in the New Century, 95 Cal. L. Rev. 1821 (2007)

Symposium: Shared Interests of Managers and Labor in Corporate Governance, 33 J. Corp. L. 1 (2007)

Symposium: Constitutionalism in Divided Societies, 5 I.Con: Int'l J. Const. L. 573 (2007)

Amy Tai, Comment: Unlocking the Doors to Justice: Protecting the Rights and Remedies of Domestic Workers in the Face of Diplomatic Immunity, 16 Am. U. J. Gender, Soc. Pol'y & L. 175 (2007)

Julie Thorpe-Lopez, Comment: America's Melting Pot: Language Not Included. U.S. Workplace Language Discrimination and the European Union Approach as a Model Framework, 38 Cal. W. Int'l L.J. 217 (2007)

Brandt Voight, Note: Letting Lilliputians Sit at the Table: Providing Physicians with a Magnified Voice to Counter the Brobdingnagian HMO, 4 Ind. Health L. Rev. 435 (2007)

David Wachutka, Collective Bargaining Agreements in Professional Sports: The Proper Forum for Establishing Performance-Enhancing Drug Testing Policies, 8 Pepp. Disp. Resol. L.J. 147 (2007)

Darnell Weeden, The less than Fair Employment Practice of an English-Only Rule in the Workplace, 7 Nev. L.J. 947 (2007)

Julie Wenell, Note: Stifling the First Amendment in the Public Workplace, 16 Wm. & Mary Bill Rts. J. 623 (2007)

James Whitman, Consumerism Versus Producerism: A Study in Comparative Law, 117 Yale L.J. 340 (2007)

Gita Wilder, Law School Debt and Urban Law Schools, 36 Sw. U. L. Rev. 509 (2007)

Kristen Williams, Comment: Employing Ex-offenders: Shifting the Evaluation of Workplace Risks and Opportunities from Employers to Corrections, 55 UCLA L. Rev. 521 (2007)

Arnold Zack, The Due Process Protocol: Getting There and Getting over It, 11 Employee Rts. & Emp. Pol'y J. 257 (2007)

Future Newsletters

To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin by email or by postmail at:
Ellen Dannin, Professor of Law
Pennsylvania State University
Dickinson School of Law
311 Beam Building
University Park, PA 16802-1912

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