Wednesday, March 26, 2008

NLRB & employer e-mail

The National Labor Relations Board back in December settled a long-standing dispute between employers and unions over controversies regarding a companies e-mail policies.

In its Dec. 16th. Guard Publishing decision the NLRB said that employers may lawfully control access & use of their internet e-mail systems and those systems can’t be used as “weapons” by a union seeking to organize their workforce.

NLRB did two things with that decision, according to a article this morning. First, it reaffirmed that “an employer had a ‘basic property right’ to restrict the use of its e-mail system,” and, second, it held that an employer doesn’t have to “prohibit all ‘nonbusiness’ e-mail in order to restrict a union’s use of its e-mail system.”

The board has always had a rule prohibiting ‘discriminatory’ enforcement of non-solicitation policies, but “decided to modify its approach in discriminatory enforcement cases to clarify that discrimination under the Act means drawing a distinction along Section 7 lines.”

National Labor Relations Act

Monday, March 24, 2008

Ohio Supreme Court's Proposed Rules of Superintendence

The Ohio Supreme Court’s Commission on Rules of Superintendence doesn’t have the constitutional authority to draw up rules on what court records the public should have access to, according to Cleveland attorney David Marburger.

His comments were in response to a set of proposed rule amendments the Court now has under advisement.

Justice Judith Ann Lanzinger, Commission chair, disagrees, citing the Constitutional provision that the Supreme Court is to oversee all state courts and set rules & procedures for them.

Marburger told the Cleveland Plain Dealer that “open court records are a substantive right that the Court doesn’t have a constitutional right to impede by assigning rules,” and that “other attorneys should be just as concerned about access because they use all types of records to defend clients.”

Justice Lanzinger, though, also commented that she was surprised that “the general feedback from the public was that the commission was trying to close off access rather than keep it open,” which, she said, couldn’t be further from the truth.

Up to two years ago, issues centering around access to court records were handled with reliance on the state’s open-records statutes, or case law. But the article says that “two years ago, the Ohio legislature tinkered with the public-records law and considered slipping in a provision to exempt all court records, which led to arguments over a separation of powers.” That’s when Chief Justice Moyer decided to “move court records under the judicial branch of the government.” (See our prior post and the Ohio Legislative Service’s analysis)

Current Rules of Superintendence

Friday, March 14, 2008

EPA Clean Air Standards

Just about a year ago the Environment Protection Agency was one of the Supreme Court’s – and just about everyone’s – favorite “punchbag” .The world was waking up to the danger of global warming and a U.N. report was attributing – “ with 90% certainty—the increase in average global temperatures since mid 20th. Century to increases in msn-made greenhouse gases in the atmosphere.”

The Supreme Court – on the same day a year ago—decided Environmental Defense v. Duke Energy and , in more particular, Massachusetts v. EPA …. Last Wednesday, EPA was again center-stage, this time “signing the most stringent 8-hour standard ever for ozone, revising the standards for the first time in more than a decade.” ( Release ) Even so, a CNN article relates that “the lower standard still falls short of what most health experts say is needed to significantly reduce heart and asthmas attacks from breathing smog-clogged air.” (Article)

Roughly half of the 700 counties nationwide that are monitored for air quality levels have dirtier air than is healthy to breathe – and the new standards add some to the list, like Indianapolis and Cleveland in our immediate area. In Ohio, only Lawrence, Miami, Montgomery, and Preble Counties meet the new standards. Carroll, Delaware, Floyd, Hancock, Hendricks, Huntington, Jackson, Madison, Morgan, Posey, Shelby, Vanderburgh, and Vigo Counties in Indiana; and Bell, Boone, Bullitt, Carter, Daviess, Edmonson, Fayette, Hancock, Hardin, Henderson, Jessamine, Livingston, Perry, McCracken, Pike, Pulaski, Simpson, and Warren Counties in Kentucky also meet the new standards. ( EPA List )
( Local news )

“Final Rule” and additional information from EPA ( Here )

Thursday, March 13, 2008

U.S Judicial Conference's Rules for Judicial Conduct/Disability

The Judicial Conference of the United States, Tuesday, approved the first-ever set of binding, nationwide rules governing the handling of conduct and disability complaints against federal judges. The rules mark a major milestone in the judiciary’s efforts to improve its self-regulation, first launched by the late Chief Justice William Rehnquist four years ago in response to criticism from Congress about the way in which the Judicial Conduct & Disability Act (1980) was being implemented. ( Release ) (See investigative committee’s report )

“The new rules,” the Conference said in its news release, “seek to promote greater public awareness of the complaint process. Under the rules, final orders on complaints against federal judges must be made public – for example, by placing those orders on the court’s public website, and all courts of appeal now have posted complaint-filing instructions on them.

“The rules also make clear, however, that some aspects of the judicial conduct & disability complaint process remain confidential, as required by federal law. A final order dismissing a complaint will not identify a complainant or the judge subject of the complaint. In most cases, a final order sanctioning a judge will identify the judge.”

Judge Ralph Winter, who chaired the committee that devised the rules and will oversee their implementation, told that the new rules provide “a step-by-step analysis of how and when complaints of how and when complaints of misconduct should be investigated, resolved and made public…. They tell chief judges when they can initiate a proceeding, and when they must – there’s been a great deal of uncertainty on that point..”

While the Rules for Judicial Conduct &Disability go effect on April 10th., the Conference has also issued proposed revisions to the Code of Conduct for United States Judges and will be entertaining public comment on those until April 18, 2008. ( Release )

The Code of Conduct was initially adopted by the Judicial Conference in 1973 based on an ABA model, but that reflected a number of modifications necessary to adapt provisions of the federal judiciary. Substantial revisions were made in 1992, and, last year, prompted by the ABA’s adoption of its newly revised model in February, a comprehensive review of the Code was again undertaken.

Comments may be submitted by e-mail to the Committee on Codes of Conduct at
Those commenting must identify themselves and their institutional affiliation, if any.

Current Code of Conduct with Revisions

Wednesday, March 12, 2008

Ohio's smoking ban is constitutional

Hamilton County Common Pleas Court Judge Fred Nelson last Friday morning upheld the State’s statutory smoking ban, passed in November 2006. ( Decision )( Article )

Ohio’s “Smoke Free Workplace Act,” said to be one of the strictest in the country, and the first in the Midwest, prohibits smoking in almost all indoor establishments. Voters, however, rejected a competing proposal that years which would’ve allowed smoking in places like bars, bowling alleys, private clubs, and some restaurants.

Plaintiff’s attorney, Scott Nazzarine, at this point hasn’t decided whether to appeal the case, but was quoted as saying, “the law has gone too far, overregulating private property to the extent that its taking people’s property… It’s just crushing small businesses, neighborhood bars and taverns, especially those in border areas. They’ve got Kentucky right across the river, which doesn’t have a smoking ban.”

Judge Nelson, however, in his decision noted nothing in the U.S. or state constitution recognizes a right to smoke, adding that “a law may be thought ill-advised, paternalistic, and generally obnoxious, and still not be unconstitutional.”

Addition background and details can be found in our April 26th and May 22nd. posts, as well as Judge Nelson’s Entry Denying Motion for Preliminary Injunction from May 2, 2007.

Tuesday, March 11, 2008

Chapter 13 surrenders of collateral

Last week, the Sixth Circuit Court of Appeals said that “due to a glitch or gap in a recent revision of the Bankruptcy Code intended to benefit creditors, the law is now silent on what happens to the remaining indebtedness in the surrender-or-the-car situation, the bankruptcy court below holding that the congressional mistake in drafting the revision means the remaining indebtedness is completely wiped out. We believe the gap should be filled and the Congressional mistake corrected, the law previously governing this situation restored until Congress can correct its mistake and fill that gap.” (AmeriCredit Financial Services v. Long, etal.)

“The gap in the law is caused by a newly-formed inconsistency between § 1325(a) and 506 of the Bankruptcy Code,” the Sixth Circuit said.

In their approach to the case, it said that “the numerous courts that have addressed the issue have reached widely conflicting conclusions, the majority of them concluding that debtors can surrender collateral in full satisfaction of the debt without any further deficiency claim,” as the Bankruptcy Court for the Eastern Division of Tennessee had done with In re Ezell in 2006. A direct appeal of was denied, but roughly a year later the Seventh Circuit criticized the case in its consideration of In re Wright.

The Sixth Circuit observed, too, however, that in the twelve-month period ending Sept. 2007, some 310,802 Chapter 13 bankruptcies had been filed, many of them secured loans for trucks or cars, and that many states had been addressing this “gap” in bankruptcy provisions by adopting remedies based on state foreclosure, repossession, auction sale, and adjudication to determine deficiencies that arose from collaterals usually being less than the remaining debt. The Sixth Circuit found this approach unacceptable as well

In its overall determinations here, the Sixth Circuit noted that “the Supreme Court, addressing amendments to the Bankruptcy Code, has determined that ‘when Congress amends the bankruptcy laws, it doesn’t write on a clean slate, and, therefore, the Court has been reluctant to accept arguments that would interpret the Code, however vague the particular language under consideration might be, to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history.” ( Dewsnup v. Timm )

“In determining how to fill the gap left by Congress after the 2005 amendments,” the Sixth Circuit Court said, “we employ a well-established common law principle of interpretation known as ‘the equity of the statute.’ This method of interpretation of gaps, mistakes and ambiguities in statutes has guided common law judges at least since the interpretation of the statute De Deonis in the Fourteenth Century…. Our Court, as well, has referred favorably to interpretation according to the ‘equity of the statute.’”[ See Popovich v. Cuyahoga County Court of Common Pleas ]

Thursday, March 06, 2008

Ohio Supreme Court/Workers' Compensation Disability

Since the beginning of time it was “generally accepted,” Joan Verchot & Megan Roach of the Cincinnati office of law firm Dinsmore & Shohl recently wrote in the Workers’ Compensation Journal of Ohio, “that a claim could be terminated pursuant to a neutral attendance policy.” That all changed in 2003 when the Supreme Court delivered its opinion in Coolidge v. Riverdale Local School District, which, the authors said, “left employers in the untenable position of having to either indefinitely retain workers’ compensation claimants who were unable to perform their jobs, or face liability… and they’ve been wrestling with termination issues of that nature ever since” --- Until December 20, 2007, when the Court decided Bickers v. Western & Southern Life Insurance.

Coolidge revolved around a “continuing contract” teacher who had been assaulted and seriously injured by one of her students. Having exhausted assault leave, accumulated sick pay, and uncompensated medical leave for over a year, her “absence without leave” and continued inability to perform her duties were seen as constituting the “other good & just cause” provision under ORC §3319. 16, and her contract terminated.
The Coolidge Court said “An employee who is receiving temporary total disability compensation pursuant to ORC §4123. 56 may not be discharges solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition..” (Syllabus)

The Court in Bickers v. Western & Southern Life Insurance held, “An employee terminated from employment while receiving workers’ compensation has no common law cause of action for wrongful discharge in violation of the public policy underlying ORC §4123 .90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” (Syllabus)

The Court admitted that its “17-year history with the tort of ‘wrongful discharge in violation of public policy’ has been filled with fits & starts”… first being recognized in 1990 with Greeley v. Miami Valley Maintenance Contractors, Inc., two years later to be partially overruled, and then two years after that to be reinstated. One of the Court’s more recent holdings on the subject was Coolidge – which Bicker had relied on in his case.

The Court used the opportunity to revisit the case and “examined the boundaries of Coolidge, and held that it was limited to considerations of ‘good and just cause’ for termination under ORC §3319. 16 (but) does not create a claim of wrongful discharge in violation of public policy for an employee who is discharge while receiving workers’ compensation.”

The Bickers Court explained the distinction between the two cases further by “limiting Coolidge to holding that terminating a teacher for absences due to a work-related injury while the teacher is receiving workers’ compensation benefits is a termination without ‘good & just cause’ under RC § 3319.16, (but) it does not create a cause of action for an at-will employee terminated for nonretaliatory reasons while receiving workers’ compensation..”

Tuesday, March 04, 2008

Computer Law Updates

The week’s started out with several instances of computer law related material that’s perhaps not up an epiphany to all, but they were in the media spotlight over the weekend.

First of all the New York Times, in what it’s referred to as “as move legal experts said could represent a major test of First Amendment rights in the Internet era”, Saturday morning commented on the WikiLeak thing by saying, “Free speech advocates immediately hailed as a victory the decision (yesterday) of a federal judge to withdraw a prior order turning off the web address of the site, but the reasoning of U.S. District Court Judge Jeffrey White also means that the court may dodge having to grapple with some meaty First Amendment questions posed by the case and touched on repeatedly at a lengthy hearing in San Francisco.

“The question implicitly before the court was whether the victims of the public disclosure on the web have any shot at redress. After hours of discussion that suggested the judge’s level of concern with reaching the correct outcome, Judge White looked unhappy that he could not think of a way to help the bank customers affected by the release of the documents. But he said he feared the initial order suspending raised serious questions of unjustified prior restraint on free speech, and that in any event, once the documents were online, the court might well be powerless.” The case is still open.

The L.A. Times, Sunday, reported that the Supreme Court may be reopening – for the first time in 30 years – the debate over what qualifies or is meant by “indecent” broadcasts with FCC v. Fox TV. (Petition for Certiorari )

In 1978, when the Court last ruled on this issue in FCC v. Pacifica Foundation, it had agreed with the FCC that comedian George Carlin’s “seven dirty words” monologue, broadcast on the radio at mid-afternoon, was indecent. The article points out that the media environment’s changed dramatically since 1978, and viewers today are exposed to the more freewheeling cable TV, Internet, and “shock jocks” on satellite radio.

“At issue now,” the Times says, “is delicately described as the problem of ‘fleeting expletives’ in over-the-air broadcasts, which the FCC still regulates.” The Justices considered the case at their Conference last Friday, but there’s been no word as of yet as to whether the case will be heard.

Finally, the Virginia Supreme Court last Friday upheld the first U.S. felony conviction for spamming, sentencing Jeremy James of Raleigh, North Carolina to nine years in prison for having sent what authorities believe to be millions of messages over a two-moth period in 2003 (Decision)

Ars Technica reported Sunday that “while one might think that the Jaynes case should’ve been open & shut, Justice Elizabeth Lacy highlighted some of the reasons behind the close 4-3 verdict in her dissenting opinion, along with the potential dangers of vague anti-spam legislation ( Justice Lacy’s dissenting opinion begins on Page 34 )

Monday, March 03, 2008

Sentencing Commission's Retroactive Crack/Cocaine Sentencing Guidelines

Amendments to the Sentencing Commission’s crack cocaine guidelines and their retroactivity become effective today. That also allows the first group of prisoners eligible for modest sentence reductions to be released from federal prisons, as well., according to a press release by the Families Against Mandatory Minimums, a national activist group “for fair and proportional sentencing laws.” (Reader Friendly Text)

The Sentencing Commission estimates that 2,520 of the 19,500 persons in prison would be eligible to request review in 2008, but the process is not automatic. The federal courts are administering application of the new retroactive guidelines, brought about in combination because of the Supreme Court’s decisions last year in Kimbrough and Gall, along with Sentencing Commission’s repeated recommendations for a number of years. (See Congressional Reports from Feb. 1995 and May 2007)

Retroactivity is not going to apply to career offenders or armed career criminals. Persons sentenced to 5- or 10-year mandatory minimums, or life sentences are also ineligible.

There remains debate and some confusion on the topic in general, but also a number of advisories such as the Center for Community Alternatives’ “Importance of Individual Assessment: Making the Most of Resentencing Under the Amended Crack Cocaine Guidelines.” (Here)

Full Text version of amendments
Supplement to 2007 Sentencing Guidelines Manual