Category Archives: labor

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

E-Mails and NRLB: Do Employees Have Rights?

On April 30, 2014, the NLRB announced that it is considering overturning Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

The issue resolves around the current existing law that states:

Employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.

The NLRB is requesting amici briefs that address the following questions:

  1. Should the Board reconsider the conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communication systems) for Section 7 purposes?
  2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communication systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
  3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
  4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to the be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
  5. Identify any other technological issues concerning email or other electronic communication systems that the Board should reconsider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

 

The briefs are due on or before June 16, 2014 and cannot exceed 25 pages.

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SCOTUS considers whether union neutrality agreements violate Labor Law

The U.S. Supreme Court considered whether “neutrality agreements” between unions and employers violate federal labor law.  Neutrality agreements are contracts between labor unions and employers under which the employers agree to support a union’s attempt to organize its workforce.

In Unite Here Local 355 v. Muhall, the Supreme Court will decide whether these agreements are a “thing of value.”  This definition matters because under Labor Law the exchange of things of value between a labor union and an employer are a felony.  Further, it is a crime for a union to request, demand, receive or accept or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by the statute.

Under the agreements, businesses help labor unions in organization efforts in exchange for labor peace, the New York Times reports. The Washington Post offers some examples: An employer might grant access to employee lists or agree to remain neutral in exchange for union concessions, such as giving up the right to strike.

The 11th Circuit Court of Appeals held that it was a “thing of value” because it includes tangibles and intangibles.  In other words, while the employer and the union can agree on the ground rules, the assistance in this case would constitute payment.

The assistance the 11th Circuit Court of Appeals referred to was as follows.  The casino (employer) agreed to allow union access to worker information and casino grounds, and to allow a unionization vote by cards collected from workers, rather than a secret ballot. The union agreed to refrain from picketing or striking during the union drive.

It is important to note that the 11th Circuit Court of Appeals failed to take into consideration whether there was monetary value.

What is mind boggling is the fact that neutrality agreements are not only common, but they help avoid conflict and encourages the practice and procedure of collective bargaining.  The preamble of the National Labor Relations Act supports labor peace and the encouragement of the practice and procedure of collective bargaining.

The outcome of this contentious and heavily litigated case remains unknown.  The Supreme Court, specifically Justice Roberts, focused on the card-check portion of the neutrality agreement.  Justice Kagan focused on how the benefits bargained by the union benefit employees and unions.

via SCOTUS considers whether union neutrality agreements are improper ‘thing of value’.

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Government Shut Down and the NLRB

When the shut down occurred, the NLRB closed its doors.  What is interesting is that the NLRB’s website is also down.

There are several notes that need to be pointed down.  Even though the NLRB is shut down, unfair labor practice charges’ statute of limitations of 6 months keeps running.  The statute of limitations is the time that a person/organization/company has to enforce their rights.  After that period, they may lose their right to do so.

The federal register provides:

Extensions for time of filing cannot apply to the 6-month period provided by Section 10(b) of the Act for filing charges, 29 U.S.C. 169(b), or to Applications for awards of fees and other expenses under the Equal Access to Justice Act, 5 U.S.C. 504.

….

(emphasis added).

The federal register also cautions persons to file the charge via fax and to serve the charges themselves.  The federal register states:

Notwithstanding the foregoing, persons wishing to file a charge pursuant to Section 10(b) of the Act, and for whom the 6-month period of Section 10(b) may expire during the interruption in the Board’s normal operations, are cautioned that the operation of Section 10(b) during an interruption in the Board’s normal operation is uncertain.

Consequently, it would be prudent to file the charge during the interruption in the Board’s operations by faxing a copy of the charge to the appropriate Regional Office.

…..

Moreover, persons filing a charge are reminded that it is their responsibility… to serve a copy of the charge upon the person against whom the charge is made.  While Regional Directors ordinarily serve a copy of the charge on a person against whom the charge is made as a matter of courtesy, they do not assume responsibility for such service, and it is unlikely that the Agency will be able to serve the charges during any period of shutdown due to a lapse in appropriated funds.

(emphasis added).

In summary, you must do as follows:

  1. Serve the unfair labor practice charge and the applications of fees and other expenses via fax.
  2. Serve the papers to the person against whom the charge is made.

Regarding other issues, the federal register explains that they are postponed.  These include hearings in front of Administrative Law Judges, pre and post election hearings, and filing or serving of documents (including briefs and appeals).

via NLRB |.

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Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

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Sup. Ct. allows Class Action Arbitration under FAA

In Oxford Health Plans LLC v. Sutter, No. 12-125 (2013), the Supreme Court ruled that an arbitrator can require a class action arbitration.

The gist of the case is that Sutter, a pediatrician, had a fee-for-services contract, which required arbitration for all contractual disputes.  When Oxford failed to promptly pay him and other physicians, Sutter filed a class action in New Jersey.  After filing, the court compelled arbitration.  The arbitrator concluded that the contract called for class action arbitration.  Sutter appealed to higher courts, but these appeals were denied.

The Supreme Court explained its decision as follows.  First, the parties agreed to go to arbitration in their contract.  Second, an arbitrator looks at the contract, makes a decision based on the contractual language, and this decision is binding.  Thirdly, and most importantly, the Supreme Court explained that judicial review is limited to whether the arbitrator interpreted the contract, not whether the court agreed with the decision.  Consequently, because the arbitrator considered the contract, the arbitrator’s decision stands.  They only way to vacate an arbitral decision is when an arbitrator strayed from his task of interpreting the contract.  In other words, not when he performed his task poorly.

As a note: In prior decisions (Steelworkers Trilogy/Misco) in the labor context under the Labor Management Relations Act (LMRA), the Supreme Court had ruled that a contractual language had to explicitly allow class actions in the arbitration clause.  Here, the arbitration clause did not do so.

This raises the question of how the Federal Arbitration Act (FAA) reconciles with LMRA arbitrations when they are both present.  In this case, only the FAA was involved.

via Workplace Prof Blog: SCOTUS OKs Class Arbitration.

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D.C. Circuit Strikes Down NLRB Notice Rule

In NAM v. NLRB, No. 12-5068 (D.C Cir. May 17, 2013), the D.C. Circuit Court of Appeals struck against the NRLB notice rule.

The background is as follows.  On August 30, 2011, the National Labor Relations Board (NLRB) published a final rule regarding notice posting.  76 Fed. Reg. 54,006.  That final rule provides:

All employees subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures…”

39 C.F.R. 104.202(a).  The final rule also declares that failure to post this notice is an unfair labor practice (ULP).   In other words, if an employer fails to put up a NLRB notice, the employer violates the National Labor Relations Act (NLRA).  This is essentially the focus for the Court of Appeals.

The court explained that under Section 8(e), the Board cannot find non-coercive employer speech to be an ULP or evidence of an ULP.  The Court of Appeals found that the NLRB’s final rule did both.  The court states,

Under the rule an employer’s failure to post the required notice constitutes an unfair labor practice.  See 29 C.F.R. 104.210, 104.201.  And the Board may consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of antiunion animus in cases in which unlawful motive [i]s an element of an unfair labor practice.’ 76 Fed. Reg. at 54,035-36; see also 29 C.F.R. 104.214(b).

(as in original).

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Successor Liability does not cover federal claims

Teed v. Thomas & Betts Power Solutions, LLC (7th Cir. 2013) held that  a buyer of a company’s assets can’t rely on state law to keep  a seller’s violations of the Fair Labor Standards Act (FLSA) from transferring to the buyer of the Seller company’s assets.  This standard has been previously applied to the LMRA, NLRA, Title VII, ADEA, and FMLA.

The Seventh Circuit explained that federal labor law claims are governed by federal common law, not state law.  Further, the court explained that employees do not have the power to stop an owner from selling the company.  Therefore, the buyer (successor) is stuck with the seller’s (prior owner) liability regardless of what the contract states.

To determine whether successor liability will apply, the Seventh Circuit considered the following multi-part balancing test:

  1. Whether the successor had notice of the pending law suit;
  2. Whether the predecessor would have been able to provide the relief sought in the lawsuit before the sale;
  3. Whether the predecessor could have provided relief after the sale;
  4. Whether the successor can provide the relief sought in the suit (if not successor liability is a phantom); and
  5. Whether there is continuity between the operations and work force of the predecessor and the successor – which favors successor liability because nothing really has changed.

via Buyer Beware of Successor Liability For FLSA Claims | Sands Anderson PC – JDSupra.

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Indiana Bill 373: whistleblower concerns

Indiana Senate Bill 373, which has not been adopted, has raised concerns.  The amended bill’s language is not currently available.

The bill provided that it is a Class A misdemeanor for defamation, to directly or indirectly harm the business relationship between the agricultural or industrial operation and its customers, and for trespass.  However, it is a defense if the person has a good faith belied that there is evidence of illegal activity and provides the recording to law enforcement or a regulatory agency within 48 hours after the person left the property or premises.

The original bill provided that persons could not take pictures or videos of the real property, structures located on the real property, or the agricultural operations or industrial operations being conducted on the real property without the consent of the owner or the representative of the owner.

The amended bill shifted its focus from unauthorized pictures and videos of the structure and operations to (1) trespassing and (2) those who gain employment by providing false information in order to gain access to inside information.  The amended bill states a person is guilty of trespass if he/she intentionally crosses a fence, a wall, or other constructed barrier that reasonably implies entry is prohibited.

The concerns from animal rights groups, unions, and representatives for news media are concerned that the revisions could become a way for employers to intimidate whistleblowers.

The bill will be presented to the full House for consideration.

via Indiana bill changes raise whistleblower worries – 14 News, WFIE, Evansville, Henderson, Owensboro.

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Economic state – a close up examination

So what is the employment state of the US right now?  You would be surprised at what the numbers really mean.

On Friday March 8th the Bureau of Labor Statistics released the most anticipated report of the employment situation.  The report found:

  • Unemployment decreased to 7.7% in February.  The number of unemployed persons also edged lower in February to 12 million.
  • Total nonfarm payroll employment increased by 236,000 in February.

So does this mean that the economy state keeps booming every month?  Not really.

It is important to look at a very important report, which is usually clouded: The Job Openings and Labor Turnover.

Why is this report so important?  For one, it shows the population’s confidence on whether they would find other employment if they quit their current job.  Second, it really shows a clear picture of how many people lost their job.  So hypothetically, if the US lost 1 million jobs, but only gained 500,000 – this doesn’t bode very well for the economy.

On Tuesday March 12th, the Bureau of Labor Statistics released the Job  Openings and Labor Turnover.  This report found:

Jon Openings

  • The number of job openings (3.7 million) did not change much from December.
  • The number of openings rose in professional and business services.
  • However, it decreased in health care and social assistance.
  • All remaining industries did not change much from January.

Hires Rate

  • The hires rate (3.1%) changed little from January.  The hires rate was not seasonally adjusted.
  • The hires rate decreased in mining and logging and in the arts, entertainment, and recreation.
  • The hires rate was unchanged for total nonfarm, private, and government.

Separation Rate

  • The separation rate includes: (1) quits; (2) layoffs; and (3) discharges.  The overall separations rate (3%) changed little from January.
  • The overall quits rate was unchanged at 1.6%.  The quits rate was not seasonally adjusted.
  • The quits rate edged up for total private in January.
  • The quits rate for government was unchanged.
  • The layoffs and discharges rate was seasonally adjusted.  The layoffs and discharges rate changed little from January at 1.1%.

So what does these statistics show?  For one, that the overall rate of job openings has not really changed.  Similarly, the overall rate of separation rate has not really changed.

Most interesting is the fact that upon close examination – the where of these job openings has changed.

In the health care and social assistance industries, the rate of job openings have decreased.  The question posed is – will this affect the services accessibility to the public?

The education and health services rate was 3.1% (January 2012), 3.2% (December 2012), and 2.8% (January 2013).  Since December 2012 to January 2013, we are seeing a 0.4% decrease.

The health care and assistance rate was 3.4% (January 2012), 3.4% (December 2012), and 3.0% (January 2013).  From December 2012 to January 2013, we also saw a 0.4% decrease.

On the more positive side, the job openings rate increased in the professional and business services, as well as in construction.

The construction industry rate has been slowly increasing. The rate is 1.4% (January 2012), 1.6% (December 2012), and 1.7% (January 2013).

The professional and business services also show a very promising increase.  In other words, we are almost back to January 2012 rates.  The rate is 3.7% (January 2012), 3.1% (December 2012), and 3.6% (January 2013).  This means that we have seen a jump of 0.5%, which puts at near the rate of January 2012.

 

via Job Openings and Labor Turnover Summary.

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