2008 Term U.S. Supreme Court Wrap-up

Posted on July 14, 2009 by Russell Cawyer

The U.S. Supreme Court completed its 2008-09 term. On the docket were five cases of interest dealing with employment law.  Here is a summary of the holdings in those cases.

  • Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn., (2009) An employee’s participation in an employer’s internal harassment investigation by responding to the employer's questions may constitute protected oppositional activity under Title VII that would support a retaliation claim. 
  • 14 Penn Plaza LLC v. Pyett, (2009) Provisions in collective bargaining agreements that clearly and unmistakably require union members to submit statutory discrimination claims to the grievance and dispute resolution provisions of the agreement are binding and enforceable on the bargaining unit members.  More detail here.
  • AT&T Corp. v. Hulteen, (2009) An employer does not necessarily violate the Pregnancy Discrimination Act when it calculates and pays pension benefits based on an accrual rule that applied only pre-PDA, and gives less retirement credit for pregnancy leave than for other medical leave.
  • Gross v. FBL Financial Services, Inc., (2009)  A plaintiff asserting an age discrimination claim under a disparate (i.e., intentional) treatment theory must prove that age was the “but for” cause of the challenged employment action and the burden of proof never shifts to the employer to show that it would have taken the same action regardless of the age of the plaintiff.  More detail here.
  • Ricci v. DeStefano, (2009)  An employer can avoid Title VII disparate-impact liability related to a promotional exam having a disparate impact on minorities if the employer can show a strong basis in evidence that, had it not certified the results, if would have been subject to disparate-treatment liability.  More detail here.
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Next Steps for Organized Labor: Its Not Going Away.

Posted on May 16, 2009 by Russell Cawyer

Following Arlen Specter's announcement that he was opposed to the Employee Free Choice Act in its current form and other senators expressing strong reservations about the bill (See Michael Fox's post here), there has been much speculation about what the next step will be in organized labor's attempts to obtain labor organization reform.  Will Labor seek to have a compromise bill passed this year?  Will it wait until the 2010 mid-term elections or until the economy improves to try and pick up a filibuster-proof majority in the Senate?  Only organized labor knows for sure what it will do next.

However at this weekend's 27th Annual Multi-State Labor and Employment Law Seminar sponsored by the Tulane University Law School in San Antonio, Texas, Nancy Schiffer, Associate General Counsel for the AFL-CIO in Washington, D.C. presented a paper entitled "Change We Can Believe In --The Employee Free Choice Act."  In her remarks, Ms. Schiffer unequivocally stated that Congress will pass some form of labor organization reform this year --likely before September 2009.  The remarks, from the Associate General Counsel of one of the nation's largest unions, makes clear that organized labor has not given up on its efforts to pass the EFCA in its current form. It appears that organized labor does not intend to wait until after the mid-term elections or an economic recovery to seek this reform.  I expect that organized labor will rejuvenate its efforts and lobbying campaign to pass the EFCA once Al Franken is seated in the U.S. Senate and the Democrats have  a 60 vote majority in the Senate.  Consequently, the stories of the EFCA demise may be greatly exaggerated and employers should not forgo their efforts to prepare for its potential passage. 

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Labor Organization Reform

Posted on March 21, 2009 by Russell Cawyer

It seems likely that there will be some manner of labor organization reform to the almost seventy-five (75) year old National Labor Relations Act.  Three bills pending before Congress offer differing levels of reform.  

Pro-Labor:  Employee Free Choice Act of 2009 (H.R. 1409) Would require the National Labor Relations Board certify a union (without a campaign or election) that obtains signed authorization cards from a majority of the employees; requires companies and unions to enter into binding arbitration over the terms and conditions of an initial contract (binding for two years) if it cannot be agreed to after ninety (90) days of negotiations and thirty (30) days of mediation; and increases the penalties that can be assessed against employers found to have discriminated against an employee in violation of the NLRA.

Pro-Management:  Secret Ballot Protection Act (S.B. 478)  This bill would make it an unfair labor practice for an employer to recognize a union that has not been selected by secret ballot and also make it unlawful for a union to cause an employer to recognize and bargain with it in the absence of a secret ballot election.

Pro-Labor:  National Labor Relations Modernization Act (H.R. 1355)  This bill would require employers to provide labor organizations with equal access to the employees in the run up to a representational election.  It would require employers that intend to make presentations, provide handouts, display signage or have meetings to allow the unions to conduct the same activities and have the same access.  This bill does not, however, in its current form attempt to eliminate the secret ballot as the EFCA does.  

Labor organization reform is a priority for organized labor.  Maintaining the status quo, preserving the right to secret ballot elections is a priority of business.  With the emphasis each side is placing on the issue it seems likely to me that some form of reform will become law during 2009.  Stay tuned for more developments as we see which bill or compromise bill becomes law.

 

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Will Weingarten Rights Return to the Private Workplace?

Posted on March 20, 2009 by Russell Cawyer

Weingarten rights are the rights a union member has to, upon request, have a union representative present during an employer’s investigatory interview that may lead to disciplinary action. For nearly thirty years Weingarten rights only applied to employees who worked at employers that had been organized by unions.

In July 2004 a primarily Democratically appointed National Labor Relations Board extended Weingarten rights to employees working for private, unorganized employers. In July 2004, a Republican appointed majority of the Board reversed its position and held that private employees not represented by a union do not have Weingarten rights. Now that the Democrats occupy the White House, are Weingarten rights on the horizon for non-organized employers?

The Board is currently comprised of two members –one appointed by President Bush and one by President Obama. With three open vacancies, President Obama can appoint a majority of the Board. Thereafter, with a Democratically appointed majority of the Board it is predicted that Regional Directors will once again begin accepting unfair labor practice charges by employees of non-organized employers who have been denied Weingarten rights. As those cases once again reach the Board level, I think it is likely that Weingarten rights will again apply to non-unionized employers.

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