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NLRB "recess" appointments were unconstitutional; Board lacked a quorum
January 25, 2013 by Ross Runkel at LawMemo

Noel Canning v. NLRB (DC Cir 01/25/2013)

The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.

On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.

At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.

Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."

Lots of chatter from all over:



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NLRB's recent significant decisions
December 21, 2012 by Ross Runkel at LawMemo

The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.

The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.

Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.




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Affirmative action ban in state constitution violates US constitution (8-7)
November 16, 2012 by Ross Runkel at LawMemo

Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting."

The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause.

Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)

(Plaintiffs limited their challenge to racial discrimination in public education.)

The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the "lengthy, expensive, and arduous process" of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university's admissions policy has four options - lobby the admissions committee, petition the leadership of the university, seek to influence the school's governing board, or initiate a statewide campaign to alter the state's constitution.

"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change."

Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that "have no application here," and one said that the majority relied on "an extreme extension" of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).



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EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706
November 10, 2012 by Ross Runkel at LawMemo

Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).

The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.

The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.

The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.



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NLRB: Firing for Facebook posting was legal
October 01, 2012 by Ross Runkel at LawMemo

Let the NLRB's press release tell the story:

The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]

The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.



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Supreme Court Watch: Employment law cases
October 01, 2012 by Ross Runkel at LawMemo

We will be watching three pending cases at the US Supreme Court as the Court's session opens today:

Kloeckner v. Solis
Oral argument on October 2.

The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."

Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

Vance v. Ball State Univ
Oral argument on November 26.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.

Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Genesis HealthCare v. Symczyk
Oral argument December 3.

Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.

Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.


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Wisconsin public employee collective bargaining statute amendments declared unconstitutional
September 15, 2012 by Ross Runkel at LawMemo

A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional.

The trial court declared the statute unconstitutional. Madison Teachers v. Walker (Wisconsin Circuit Ct 09/14/2012)

(1) Certain portions of the statute violated the free speech clauses of the Wisconsin and US constitutions. Although there is no constitutional right to collective bargaining, the statute imposes burdens on the speech and associational rights of employees represented by unions which burdens are not imposed on other employees. They cannot negotiate wage increases greater than the cost of living, they cannot pay dues by payroll deductions solely because the dues go to labor organizations. A ban on fair share agreements means that union members bear the cost of bargaining for non-members who receive the befits of bargaining. Requiring unions to be recertified annually burdens members with the full costs of the election.

(2) The trial court applied strict scrutiny to the equal protection claims because of the infringement on speech rights. The statute creates two classes of employees (represented and non-represented), and the defendants "offer no defense of the statute that would survive strict scrutiny."

(3) Certain portions of the statute violated the Wisconsin constitution's home rule amendment, violated the constitutional bar on impairment of contracts, and deprived employees of property without due process.



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Washington's sexual orientation discrimination amendment is not retroactive
September 13, 2012 by Ross Runkel at LawMemo

The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.

The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.

Loeffelholz v. Univ of Washington (Washington 09/13/2012)

Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.

The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.

Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.

The court's findings:

(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.

(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.

(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.



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Obesity can be a disability, at least in Montana
July 09, 2012 by Ross Runkel at LawMemo

Obesity can be a disability, at least in Montana.

Full decision: BNSF Railway v. Feit (Montana 07/06/2012)

Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.

BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.

The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?

The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).

The federal court laid out these facts:

1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.

2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”

3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.

4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.

5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.

6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.

The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).

The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.



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Summary of Knox v. SEIU
June 24, 2012 by Ross Runkel at LawMemo

My summary of Knox v. SEIU at SCOTUSblog.com: Knox knocks unions on mid-year assessment for non-members.



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Mid-year union dues increase: Hudson notice required, opt-in not opt-out
June 21, 2012 by Ross Runkel at LawMemo

The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)

This is a remarkable decision for two reasons.

First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.

Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.

The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.

The US Supreme Court held (7-2) that

"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.

Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."

Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.



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EEOC briefs on line
June 20, 2012 by Ross Runkel at LawMemo

This is pretty cool.

EEOC briefs are now on line. [Here]

They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.

And there is a user-friendly search function.

Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].



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