US Supreme Court grants cert in MSPB appeal jurisdiction case
January 13, 2012 by Ross Runkel at LawMemo
Today the US Supreme Court granted certiorari in Kloeckner v. Solis (US Supreme Ct cert granted 01/13/2012)
Kloeckner appealed the Merit Systems Protection Board's (MSPB) final order of dismissal as untimely to the District of Columbia District Court, which transferred venue to the Eastern District of Missouri. The trial court dismissed on the ground that the Federal Circuit had exclusive subject matter jurisdiction. The 8th Circuit affirmed.
The jurisdictional issue turned on the meaning of the term"[c]ases of discrimination" in 5 USC Section 7703(b)(2).
The 8th Circuit held that petitions to review MSPB's final decisions must be filed in the Court of Appeals for the Federal Circuit unless the MSPB decided discrimination issues on the merits.
The 2nd and 10th Circuits hold that cases of discrimination shall be filed in district court as required by Title VII, regardless of whether the MSPB's decision was on the merits.
The US Supreme Court granted certiorari to review the 8th Circuit judgment.
SCOTUS Argument recap: Mootness could squelch union fees case
January 13, 2012 by Ross Runkel at LawMemo
Knox v. SEIU was argued at the US Supreme Court Tuesday.
The issue is whether a public sector union must send a Hudson notice when it implements a mid-year dues and fees increase.
Another issue is whether this case is now moot.
For my recap of the oral arguments, see Argument recap: Mootness could squelch union fees case at SCOTUSblog.
Ministerial exception bars minister's termination suit against church
January 11, 2012 by Ross Runkel at LawMemo
The US Supreme Court unanimously held that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (US Supreme Ct 01/11/2012)
The church employed Cheryl Perich as a "called" teacher and a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. After the church discharged Perich, the EEOC sued claiming the church discharged her in retaliation for threatening to bring a suit under the Americans with Disabilities Act (ADA). The trial court granted summary judgment for the church based on the ministerial exception; the 6th Circuit reversed on the ground that Perich was not a "minister." The Supreme Court reversed.
The Court recognizes a ministerial exception because "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church."
Perich was a minister within the meaning of the ministerial exception. Both the church and Perich held her out as a minister. That title required significant religious training and formal commissioning. Her job duties reflected a role in conveying the church's message and carrying out its mission.
(The Court expressed no view on whether the ministerial exception bars suits other than employment discrimination suits challenging a church's decision to discharge a minister.)
NLRB: Certain mandatory arbitration agreements violate federal labor law
January 06, 2012 by Ross Runkel at LawMemo
D. R. Horton, Inc. and Michael Cuda. Case 12–CA–25764 (01/03/2012)
The NLRB has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.
The Board said:
"In this case, we consider whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial. For the reasons stated below, we find that such an agreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. In the circumstances presented here, there is no conflict between Federal labor law and policy, on the one hand, and the FAA and its policies, on the other."
The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.
The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.
Chairman Mark Gaston Pearce and Member Craig Becker joined in finding the agreement unlawful. Member Brian Hayes was recused from the case. The decision was finalized on Jan. 3, but was issued publicly by the agency Jan. 6.
The decision requires Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all forums.
It is noteworthy that this decision will apply to private sector employers whether or not they are unionized.
Robert L. Fletcher
January 06, 2012 by Ross Runkel at LawMemo
Bob Fletcher, 93, died last week. At the University of Washington Law School, he was a giant of a teacher. Later he was a friend.
While he was teaching me the intricacies of the rule against perpetuities, he was teaching (by his example) precision, respect, and courtesy.
Bob created a better world simply by being in it.
[Obituary]
When union fees go up, must a “Hudson notice” go out?
January 05, 2012 by Ross Runkel at LawMemo
I've written an article for SCOTUSblog on Knox v. Service Employees International Union (SEIU) [here].
The US Supreme Court will hear oral arguments on January 10 on the following two questions:
(1) Whether a state, consistent with the First and Fourteenth Amendments, may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction;and
(2) Whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.
President making three recess appointments to NLRB
January 04, 2012 by Ross Runkel at LawMemo
President Obama today announced his intent to recess appoint three individuals to serve as Members of the National Labor Relations Board.
We expect the appointments to be challenged on the ground that the Senate was not in "recess."
Sharon Block, Democrat, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Terence F. Flynn, Republican, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
Richard Griffin, Democrat, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE's central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
Harris v Superior Court - Administrative exemption in California
December 29, 2011 by Ross Runkel at LawMemo
Today's big decision out of California is Harris v. Superior Court, an employer-favoring opinion on how to tell whether an employee is exempt under the California Labor Code and thus not entitled to statutory overtime.
The case deals with insurance claims adjusters, but it will apply across the board.
The California Court of Appeal had ruled that insurance claims adjusters are not exempt employees as a matter of law. The California Supreme Court unanimously reversed, finding that the Court of Appeal simply got the law wrong.
The Court of Appeal had said that the only employees who qualify as exempt are those whose work is "performed at the level of policy or general operations." Everyone else, then would be a production worker, and not exempt.
The Supreme Court rejected that bright line between administration and production. Indeed, the holding of the court went no further than that. The court said, "We merely hold that the Court of Appeal improperly applied the administrative/production worker dichotomy as a dispositive test."
However, if you want to read an interesting discussion of the details of the opinion, look at Cal Supreme Court Reverses Horrific Decision on Administrative Exemption But Declines to Provide Much Guidance on How Exemption Should Be Applied by Thomas Kaufman at Labor and Employment Law Blog.
Employee bathroom surveillance camera, although faulty, could be invasion of privacy
December 27, 2011 by Ross Runkel at LawMemo
You can't think this up: Bathroom surveillance camera.
Koeppel v. Speirs (Iowa 12/23/2011).
Koeppel sued the employer for invasion of privacy and sexual harassment. The trial court granted the employer's motion for summary judgment. The Iowa Court of Appeals affirmed on the sexual harassment claim and reversed on the invasion of privacy claim. The Iowa Supreme Court affirmed the court of appeals.
The employer placed a camera in the unisex bathroom. The issue of first impression, proof necessary to establish unreasonable intrusion of the invasion-of-privacy tort, required the court to develop a standard for the jury to apply in determining when electronic devices intrude into privacy.
Nationally, courts are divided on whether installation of surveillance equipment in a private place or whether actual viewing and/or recording triggered the intrusion.
The Iowa Supreme Court determined that a standard involving installation was more consistent with the spirit and purpose of the protection of privacy. Because the parties disputed whether the equipment was capable of exposing Koeppel's activities in the bathroom, the court stated that evidence the camera was capable of operation and had operated in the past from a different location in the office met the standard.
The court concluded, "[a]n electronic invasion occurs under the intrusion on solitude or seclusion component of the tort of invasion of privacy when the plaintiff establishes by a preponderance of evidence that the electronic device or equipment used by a defendant could have invaded privacy in some way."
NLRB postpones rights posting rule to April 30
December 23, 2011 by Ross Runkel at LawMemo
The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.
The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule.
The new implementation date is April 30, 2012.
Most private sector employers (whether unionized or not) will be required to post the 11-by-17-inch notice on the new implementation date of April 30. The notice is available at no cost from the NLRB through its website, www.nlrb.gov, which has additional information on posting requirements and NLRB jurisdiction.
Chamber v. NLRB seeks to enjoin new election rule
December 21, 2011 by Ross Runkel at LawMemo
The Chamber of Commerce of the United States of America sued the NLRB on December 20 seeking to enjoin implementation of the NLRB's new rule on elections.
The Chamber claims that the rule exceeds the Board's statutory authority and violates the first and fifth amendments.
NLRB adopts new election rule
December 21, 2011 by Ross Runkel at LawMemo
The NLRB has adopted its controversial new rule designed "to reduce unnecessary litigation and delays."
The rule will be published in the Federal Register on December 22, and is due to take effect on April 30, 2012.
Main features:
1. Authorize hearing officers to limit the evidence introduced at the pre-election hearing to that relevant to a genuine issue of fact material to whether a question of representation exists. Currently, parties can challenge the scope of the unit and raise issues as to whether potential voters are supervisors or confidential employee. These issues would now be resolved after the election is held.
2. Eliminate the parties' right to file post-hearing briefs, giving hearing officers discretion to either allow or disallow them.
3. Eliminate parties’ right to seek Board review of regional director’s pre-election rulings while allowing parties to seek post-election review of all such rulings that have not been rendered moot by the election.
4. Eliminate the policy that the regional director normally will not schedule an election until a date 25 days after the direction of election in order to permit the Board to rule on any request for review.
5. make Board review of a regional director’s or judge’s disposition of post-election disputes discretionary after both stipulated and directed elections.
