Follow up on Arpaio: Yes, I did it but it wasn’t my fault

Sheriff Arpaio has been on the news multiple times for his harsh tactics and opinion on immigration.  I came across this interesting article in Courthouse News, where Arpaio admitted that he violated the law and then shifted all of the blame to his attorney and the people under him for following his orders.

Article on the preliminary injunction that the Court ordered.

Article on Arpaio being brought on contempt charges.

via Courthouse News Service.

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Obama Vetoes rule that would have negative impact on union elections

President Barack Obama vetoed a measure passed by the Republican-led Congress that would have stopped the National Labor Relations Board from streamlining the process of unionizing workers.

The new rules, drafted by the NLRB last year would, shorten the amount of time between when a union election is called and when it is held to as little as 14 days.

They also require employers to supply union organizers with workers’ email addresses and telephone numbers, and delay legal challenges by employers until after workers have voted on a proposal to unionize.

They are now set to take effect on April 14.

Earlier this month, Republicans in the House and Senate approved a bill that would have stopped their enactment.

But on Tuesday, Obama vetoed the measure, while stating that he say the NLRB’s approach as “modest” and a reflection of “common sense.”

“”Unions have played a vital role in giving workers that voice, allowing workers to organize together for higher wages, better working conditions, and the benefits and protections that most workers take for granted today.,” the president said. ” Workers deserve a level playing field that lets them freely choose to make their voices heard, and this requires fair and streamlined procedures for determining whether to have unions as their bargaining representative..”

” Because this resolution seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard, I cannot support it,” Obama added.

via Courthouse News Service.

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Filed under civil rights, federal, labor, NLRA, NLRB, union

House Bipartisan Bill – Medicare Access and CHIP

A bipartisan bill, H.R. 2, Medicare Access and CHIP Reauthorization ACT, would repeal the Sustainable Growth Rate (SGR) formula, which sets a cap on physician spending, and would revamp payment of physicians under Medicare. On March 26, 2015 the U.S. House overwhelmingly (392-37) voted in favor of the bill, also known as SGR replacement bill. The Senate will vote on the bill after recess.

The legislation was introduced by Speaker John Boehner (R, Ohio) and Minority Leader, Nancy Pelosi (D, California). It would repeal the SGR Medicare formula that imposes the imminent threat of cuts to Medicare providers and would eliminate the need for Congress to set payment rates for Medicare physicians annually – a process known as “doc fix”. Since 2003, Congress has overridden the cuts imposed by SGR on 17 occasions, and the most recent override ends on March 31, 2015. If Congress does not take action, Medicare payments to physicians will be cut by 21% on April 1, 2015.

The H.R. Medicare Access and CHIP Reauthorization ACT will

  • Repeal the Sustainable Growth Rate Formula;
  • Ensure a 5-year period of annual increases of 0.5% in payments to physicians;
  • Set up a two-tier payment system that incentivizes a shift to value-based payment systems that reward physicians who meet performance thresholds and make care-coordination efforts for patients with chronic conditions;
  • Incentivize transition to alternative payment models (APMs) by requiring that physicians receive at least 25% of their revenue through an APM in 2018-2019, with an increased threshold overtime; and
  • Extend funding for the Children’s Health Insurance Program (CHIP) and community health centers for another two years.

These changes are estimated to cost approximately $200 billion, and $70 billion of that cost would be offset by two major program changes: (1) higher premiums for higher-income Medicare beneficiaries and (2) reduced governmental spending on supplemental insurance plans, increasing out-of-pocket costs for Medigap recipients.

via Legislation Law Prof Blog.

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Hobby Lobby’s Aftermath

Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means.

This is his Abstract:

In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.

The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.

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Filed under civil rights, employment, federal, Insurance

Surviving Right to Work States

This is an interesting article published by the Washington Post. It discusses some key points that Unions can follow to survive in the tough anti-union atmosphere. This article bases its arguments on scholarly published articles.

The problem that I see is that Unions must represent all employees, regardless of membership.  Any changes would have to occur at the legislative level, which means: it will just not happen.

The underfunding of Unions continues to be a big struggle.  How can you get enough staff to represent members when there is no money to pay them? RTW laws are a slippery slope.

via Laws that decimate unions may be inevitable. Here’s how labor can survive. – The Washington Post.

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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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Filed under attorneys, briefs, civil rights, electronic discovery, employment, federal, labor, legal decision, NLRA, NLRB, rules, Section 7, union

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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Filed under Appellate, civil rights, courts, discrimination, employment, federal, labor, legal decision, NLRB, union

Filibuster Changes

I heard about this vote a while back and it will be interesting to see how it plays out.  You hear about this all the time.  The majority party (regardless of whether they are Democrat or Republican) wants to change filibuster rules.

This year the number of bills passed has been the lowest since Congress was formed.  NBC calls it “Do-Nothing” Congress. USA Today describes the 2011-12 period as the “least productive year on record” and 2013 as being on track as the “least productive single year in modern history.”

The question is then, do we need filibuster reform?  The answer is yes.  To what extent?  This is heavily contested.

The Senate approved the most fundamental alteration of its rules by ending the minority’s party ability to filibuster most presidential nominees in response to the partisan gridlock that has plagued Congress.  (NY Times article).

Under the change, the Senate will be able to cut off debate on executive and judicial branch nominees with a simple majority rather than rounding up a supermajority of 60 votes.  This does not apply to all nominees, such as Supreme Court nominees.

via In Landmark Vote, Senate Limits Use of the Filibuster – NYTimes.com.

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Vets discharged under Don’t Ask Don’t Tell

The ABA is supporting legislation to allow veterans who were discharged under the Don’t Ask Don’t Tell to request a change in their military records.

“Restore Honor to Service Members Act,” H.R. 2839, will ensure that veterans who were discharged solely because of their sexual orientation and did not receive an “honorable” characterization of service can have the opportunity to request their characterization be upgraded. In addition, those who did receive an honorable discharge would be able to remove any reference to sexual orientation from their records by requesting a review.

This bill was introduced on July 25, 2013 and was referred to committee.  Since July 25, 2013 there has been no movement.  The ABA President’s letter, dated November 21, urges the subcommittee to take action.

via Vets discharged under Dont Ask, Dont Tell should be allowed to seek change in records, ABA says.

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Filed under civil rights, discrimination, employment, federal, Pending Legislation