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From: 	"BNA Highlights" <bhighlig@bna.com>@ENRON  
Sent:	Sunday, November 25, 2001 11:14 PM
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Subject:	Nov. 26 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
November 26, 2001
______________________________

ISSN 1522-5968


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HIGHLIGHTS
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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_


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JOURNAL
_______

MEETINGS
   Calendar of meetings, courses, and seminars . . . Page
   Z-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w9y3v9_


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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_

   ___________________________________________________________
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