he Lawletter Vol 41 No 9

Suzanne Bailey, Senior Attorney,National Legal Research Group

          For almost 80 years, the National Labor Relations Board ("NLRB" or "Board") has awarded "search-for-work" and "interim employment" expenses as part of its broad discretionary authority under section 10(c) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(c), to provide a make-whole remedy for those injured by unfair labor practices in violation of section 8 of the NLRA, 29 U.S.C. § 158.  See Crossett Lumber Co., 8 N.L.R.B. 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938).  Such expenses include, for example, increased transportation costs necessitated by seeking or commuting to interim employment, room and board while seeking employment and/or working away from home, and the cost of moving if necessary to assume interim employment. During those almost-80 years, the NLRB has awarded these expenses to those individuals who have suffered discrimination under section 8 of the NLRA in the form of an offset to interim earnings, rather than as a separate element of a back-pay award.  The result of treating the award as an offset to interim earnings was that (1) individuals who were unable to find interim employment did not receive any compensation for their search-for-work expenses, and (2) individuals who found jobs that paid wages lower than the amount of their expenses did not receive full compensation for the search-for-work and interim employment expenses.

The Lawletter Vol 41 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).

     The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time.

The Lawletter Vol 41 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

     The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611, shields foreign governments and their agencies from suit in U.S. courts unless the suit falls within an exception specifically enumerated in the Act. In a recent decision, OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390, 392 (2015), a unanimous U.S. Supreme Court considered the commercial activity exception, 28 U.S.C. § 1605(a)(2), and concluded that the exception did not extend to the purchase of a Eurail pass in the United States.

     Carol Sachs, a California resident, purchased a Eurail pass over the Internet from a Massachusetts-based travel agent. Eurail passes allow holders unlimited passage for a set period of time on participating Eurail Group railways, including OBB Personenverkehr AG ("OBB"), the Austrian state-owned railway. As she was attempting to board an OBB train in Innsbruck, Austria, Ms. Sachs fell from the platform onto the tracks, where a moving train crushed her legs, requiring amputation of each leg above the knee. She brought suit for her injuries in the U.S. District Court for the Northern District of California on the grounds of (1) negligence, (2) strict liability for design defects in the train and platform, (3) strict liability for failure to warn of the design defects, (4) breach of an implied warranty of merchantability for providing a train and platform unsafe for their intended uses, and (5) breach of an implied warranty of fitness for providing a train and platform unfit for their intended uses.

The Lawletter Vol 40 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Whether you believe that quarterback Tom Brady was aware that the New England Patriots were using allegedly deflated footballs during the January 18, 2015 AFC Championship Game between the Patriots and the Indianapolis Colts or whether you are unsure what sport the Patriots and Colts play or whether they play the same sport, the recent decision by U.S. District Judge Richard M. Berman in National Football League Management Council v. National Football League Players Ass'n, Nos. 15 Civ. 5916 RMB JCF, 15 Civ. 5982 RMB JCF, 2015 WL 5148739 (S.D.N.Y. signed Sept. 3, 2015), appeal filed, No. 15-2805 (2d Cir. Sept. 3, 2105), vacating the arbitration award in favor of the National Football League ("NFL"), provides a valuable primer on basic notice and hearing requirements under the Federal Arbitration Act ("FAA").

     As has been well publicized, shortly after the conclusion of the January 18, 2015 game, the NFL retained Theodore V. Wells Jr. and the law firm of Paul, Weiss, Rifkin, Wharton & Garrison ("Paul, Weiss"), to conduct an independent investigation—along with NFL Vice President and General Counsel Jeff Pash—into the use of underinflated balls. The source of authority for the investigation was the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules ("Competitive Integrity Policy").

The Lawletter Vol 40 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     Section 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA") provides:

     Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

8 U.S.C. § 1227(a)(2)(B)(i).¹ In Mellouli v. Lynch, 135 S. Ct. 1980 (2015), the U.S. Supreme Court held that INA section 237(a)(2)(B)(i) was not triggered by a Kansas state law drug paraphernalia conviction for concealing four orange tablets in a sock. The defendant acknowledged that the tablets were unprescribed Adderall, but the criminal complaint did not identify the substance as Adderall. In so holding, the Court reversed the judgment of the Eighth Circuit Court of Appeals, Mellouli v. Holder, 719 F.3d 995 (8th Cir. 2013), which had affirmed the decision of the Board of Immigration Appeals ("BIA") upholding the deportation order.

The Lawletter Vol 40 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

     A recent en banc decision from the Supreme Court of Washington serves as a reminder of the bedrock upon which our criminal justice system stands, that is, that every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. In State v. Walker, 341 P.3d 976 (Wash. 2015) (en banc), the defendant was charged as an accomplice to aggravated first-degree premeditated murder, first-degree felony murder, first-degree assault, first-degree robbery, first-degree solicitation to commit robbery, and first-degree conspiracy to commit robbery in connection with an armored truck robbery at the Walmart where the defendant's live-in girlfriend was employed. The defendant was convicted of all charges, and he subsequently appealed, claiming, inter alia, that he had been denied a fair trial due to prosecutorial misconduct in closing argument.