Agency Guidance May Not Be Enough: Keeping Workers Safe and Avoiding Employer Workplace Liability During the COVID-19 Pandemic

SAMUEL ESTREICHER, ELISABETH CAMPBELL

NYU law professor Samuel Estreicher and 2L Elisabeth H. Campbell describe the wide array of laws that will need to come into play to keep workers safe and avoid employer liability as workplaces consider reopening amid the COVID-19 pandemic, cautioning that compliance will not necessarily relieve employers of the risk of litigation and liability. Estreicher and Campbell discuss applicable recommendations, guidelines, and requirements set forth by such agencies as the U.S. Department of Labor, which is responsible for administering the federal Occupational Safety and Health Act (OSHA), the Centers for Disease Control and Prevention (CDC), and the Equal Opportunity Employment Commission (EEOC).

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International Brotherhood of Teamsters, Local 396 v. NASA Services, Inc.

Docket: 19-55166

Opinion Date: May 1, 2020

Judge: Lawrence J. VanDyke

Areas of Law: Arbitration & Mediation, Contracts, Labor & Employment Law

The Ninth Circuit reversed the district court's order compelling arbitration of a labor dispute between a waste management company, NASA Services, and the union. The company and union signed a Labor Peace Agreement containing an arbitration clause, and the agreement's terms were expressly conditioned upon the City entering into an exclusive franchise agreement with NASA. The panel held that the agreement clearly and unambiguously contains a condition precedent to formation that is both ascertainable and lawful. Therefore, NASA and the union were parties to a proposed agreement that would become operative, effective, and enforceable if and only if the condition precedent therein was satisfied. Consequently, the condition failed and the district court may not compel arbitration.

U.S. Bank, N.A. v. Thunder Properties, Inc.

Docket: 17-16399

Opinion Date: May 1, 2020

Judge: Ronald Murray Gould

Areas of Law: Banking, Real Estate & Property Law

The Ninth Circuit certified to the Nevada Supreme Court the following questions: (1) When a lienholder whose lien arises from a mortgage for the purchase of a property brings a claim seeking a declaratory judgment that the lien was not extinguished by a subsequent foreclosure sale of the property, is that claim exempt from statute of limitations under City of Fernley v. Nevada Department of Taxation, 366 P.3d 699 (Nev. 2016)? (2) If the claim described in (1) is subject to a statute of limitations: (a) Which limitations period applies? (b) What causes the limitations period to begin to run?

Benson v. Chappell

Docket: 13-99004

Opinion Date: May 1, 2020

Judge: Consuelo Maria Callahan

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit affirmed the district court's denial of petitioner's habeas corpus petition challenging his California conviction and death sentence for murder and other crimes. Petitioner raised two certified claims and two uncertified claims. The panel held that petitioner failed to show that the California Supreme Court's denials of his claims were unreasonable determinations of the facts or contrary to clearly established federal law. In this case, the California Supreme Court reasonably determined that an officer's misstatement during petitioner's interrogation that there was no death penalty in California did not prompt petitioner's confessions. Furthermore, petitioner failed to show that his statements were not knowing, voluntary, and intelligent. Even if petitioner were able to show that trial counsel was ineffective in not fully investigating his abuse as a child or his alleged organic brain injury, the panel held that the state court could reasonably have determined that any shortcoming in trial counsel's investigation was not prejudicial. Finally, the panel granted a certificate of appealability on petitioner's two uncertified claims and held that the state court reasonably rejected the claims that his trial counsel should have impeached the government's case and the prosecutor withheld material, exculpatory evidence.

Mero v. Barr

Docket: 17-70929

Opinion Date: May 1, 2020

Judge: Paul Jeffrey Watford

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit granted in part a petition for review of the BIA's finding that petitioner was removable based on his conviction for possession of visual presentation depicting sexual conduct of a person under 16 years of age, in violation of Nevada Revised Statutes (N.R.S.) 200.730. Applying the categorical approach, the panel compared the elements of N.R.S. 200.730 with the applicable definition of "sexual abuse of a minor," which requires proof of three elements. The panel held that N.R.S. 200.730 punishes a broader range of conduct because the Nevada statute does not require proof that the offender participated in sexual conduct with a minor. Therefore, petitioner's conviction did not qualify as sexual abuse of a minor. The panel explained that, with a possession-only offense such as N.R.S. 200.730, the minor depicted in the image is not the direct object of the offender's conduct, which is a necessary predicate for the offense to qualify as sexual abuse of a minor.

Oregon Natural Desert Assoc. v. United States Forest Service

Docket: 18-35514

Opinion Date: May 1, 2020

Judge: Milan D. Smith

Areas of Law: Environmental Law, Government & Administrative Law

The Ninth Circuit affirmed the district court's grant of summary judgment to the Forest Service and intervenors in an action challenging the Forest Service's issuance of grazing authorizations between 2006 and 2015 on seven allotments in the Malheur National Forest. ONDA argued that the Forest Service acted arbitrarily and capriciously in its application of the Administrative Procedure Act (APA) and the National Forest Management Act (NFMA) by failing to analyze and show that the grazing authorizations were consistent with the Forest Plan. The panel held that ONDA's challenge is justiciable where the challenge was sufficiently ripe and the dispute was not moot. On the merits, the panel held that the Forest Service met its procedural and substantive obligations pursuant to the NFMA and the APA in issuing the grazing authorizations. In this case, because the Forest Service was not obligated by statute, regulation, or caselaw to memorialize each site-specific grazing authorization's consistency with the forest plan, the panel held that the absence of such a document is not in itself arbitrary and capricious. Furthermore, the Forest Service did not act arbitrarily or capriciously with respect to the NFMA's consistency requirement as applied to Standard GM-1 in issuing any of the challenged grazing authorizations. Finally, the Forest Service did not act arbitrarily or capriciously with respect to Standard 5 in issuing any of the challenged grazing authorizations.