Friday, December 12, 2014
Doesn't the NLRB know this is a busy week for me? First was yesterday's e-mail decision in Purple Communications. Today, the NLRB released new final rules to reform the representation process. As readers are well aware, this is Version 2.0 for the representation rulemaking process, which was initially caught up in challenges over NLRB member appointments. The NLRB decided to drop the rules rather than fight the challenge. Some commentators (ahem) thought that the critics should beware of what they ask for because the NLRB could come back with stronger rules. The Board proposed just such a set of rules in February. The Board has now adopted them in a final rule. I haven't had time to compare the proposed and final rules side-by-side, but they look substantially the same at first glance.
Although these rules are somewhat broader than the ones in 2011, I should note that they aren't a surprise, as they track the NLRB initial proposed rules in 2011, which the Board eased back on a bit in their final rules. The Board's information site on this year's rules has a very helpful chart comparing the old and new rules that you should definitely check out (but doesn't copy well on the blog). Instead, I am copying the Board's summaries of the changes below; the full set of final rules is here.
One final note. In spite of what critics will argue, these rules do not set up "ambush elections." Instead, the NLRB is proposing modest reforms to eliminate unwarranted delay in the election process, both before an election is run and appeals to a completed election. They are also doing basic modernization reforms, such as allowing electronic filing and including e-mail addresses in the Exclesior list, among other things. There will still be plenty of time for unions and employers to express their views on unionization and for employees to make an informed decision. There will just be somewhat less time for employers fight the union with captive-audience meetings and other aggressive tactics, some of which are illegal but difficult to remedy. Employers will still have time for those strategies, just not as much. The rules will also lessen the amount of time that employers can stall after a union wins an election--time that is often vital to a union trying to maintain support. Finally, many critics will be people who argued against card-check elections by waving the banner of fair secret-ballot elections. This is exactly what the Board is doing here by making the secret-ballot process fairer and lessening unnecessary delay.
Hat Tip: Patrick Kavanagh
Here's the summary:
Modernizing Board Procedures
Electronic Filing/Communications – Parties may file documents, such as petitions, electronically, rather than by fax or mail. Parties and the NLRB’s regional offices can transmit documents electronically, rather than using slower or more expensive forms of communications, such as mail or express delivery services.
Election Voter List – The employer must include available personal email addresses and phone numbers of voters on the voter list in order to permit non-employer parties to communicate with prospective voters about the upcoming election using modern forms of communication.
Streamlining Board Procedure and Reducing Unnecessary Litigation
Identifying Disputed Issues – The non-petitioning parties will be required to respond to the petition and state their positions generally the day before the pre-election hearing opens. The petitioner will be required to respond to the issues raised by the non-petitioning parties at the opening of the hearing. Litigation inconsistent with the positions taken by the parties will generally not be allowed.
Litigation of Eligibility and Inclusion Issues – Generally, only issues necessary to determine whether an election should be conducted will be litigated in a pre-election hearing. A regional director may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held. In many cases, those issues will not need to be litigated because they have no impact on the results of the election.
Post Hearing Oral Argument and Briefs – All parties will be provided with an opportunity for oral argument before the close of the hearing. Written briefs will be allowed only if the regional director determines they are necessary.
Review of Regional Director Rulings – The parties may seek review of all regional representation-case rulings through a single post-election request, if the election results have not made those rulings moot. The election will no longer be stayed after the regional director issues a decision and direction of election, in the absence of an order from the Board.
Review Standard for Post-election Issues – The Board will have the discretion to deny review of regional director post-election rulings, under the same standard that has governed Board review of regional director pre-election rulings for many years.
Increasing Transparency and Standardizing Board Process
Earlier and more complete information to the parties – When the petitioner files its petition, it will be required to simultaneously serve a copy of the petition, along with a more detailed Agency description of representation case procedures and an Agency Statement of Position form, on all parties identified in its petition in order to provide them with the earliest possible notice of the filing of the petition and Board procedures for processing those petitions. NLRB regional offices will serve a Notice of Hearing and a Notice of Petition for Election (along with a copy of the petition, description of representation case procedures and the Statement of Position form) on all parties. The non-petitioning parties will be required to respond to the petition (generally the day before the hearing opens) by filing with the regional director and serving on the other parties a Statement of Position identifying the issues they have with the petition. As part of its Statement of Position, the employer will be required to provide all other parties with a list of prospective voters, their job classifications, shifts and work locations.
Earlier and more complete information to employees - The employer is required to post a Notice of Petition for Election containing more detailed information on the filing of the petition and employee rights within two business days of the region’s service of the petition. The Notice of Election will provide prospective voters with more detailed information about the election and the voting process.
Scheduling of Hearings – Except in cases presenting unusually complex issues, pre-election hearings will generally be set to open 8 days after a hearing notice is served on the parties. Post-election hearings will generally open 14 days after objections are filed.
Thursday, December 11, 2014
With right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction: "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!
Today, the NLRB issued its 3-2 decision in Purple Communications, reversing Register-Guard. In Register-Guard, the Board concluded that employees had no right to e-mail communications that used employers' equipment or networks (including employer email addresses). This gave employers f almost total autonomy to ban workplace e-mails that involved NLRA-protected communications.
In Purple, the NLRB concludes that employees do have a Section 7 right to engage in e-mail communications at work, just like they have for written or oral communications at work under the Supreme Court's Republic Aviation case. As the Board noted, this result logically flows from Republic Aviation's holding that employer's real property interests cannot trump employees' NLRA right to engage in protected communications in the workplace--instead those interests must be balanced. The NLRB in Register-Guard distinguished Republic Aviation by relying on the fact that e-mail uses employers' personal, rather than real, property. However, as the Board acknowledged in Purple, that's backwards because personal property is entitled to less protection than real property. The Board also downplayed early cases making similar points for bulletin boards, telephones, and other personal property--none of which provided any substantive analysis of the issues involved.
The main rule in Purple is a Republic Aviation-based analysis, in which:
we will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
Some important points for this analysis. First, the Board did away with some aspects of Republic Aviation that doesn't fit e-mail well. In particular, the right to use e-mail is not based on whether it was made in a non-work area or whether it is a solicitation or distribution. This makes perfect sense, as neither distinction applies to electronic communications. In contrast, the rule is limited to non-work time. As the Board noted, this is going to require case-specific analyses. That shouldn't be too hard in most cases (e.g., if employees don't have work and non-work time delineated, the employer shouldn't be allowed to limit e-mail based on that distinction), but there will be some gray areas. Second, the presumption is limited to instances where employees already have access to employer e-mail. Third, the decision is limited to e-mail, but not other electronic communications. I find this odd, as the rationale of the decision should apply to texts and other similar electronic communications. But the Board was probably just trying to limit the holding's reach. Finally, the Board shed some light on how it will treat surveillance issues. This was a potentially big issue, but the Board took a fairly employer-friendly view by stating that as long as the employer monitors e-mail as it ordinarily would (e.g, it doesn't increase monitoring when a union is on the scene), it will be OK.
As many readers are aware, I've written a lot on this issue (including an amicus brief in Purple) and am quite pleased with the decision (if readers want more detail on these issues, you can see some of my earlier work here, here, and here). It could've gone further, but I think the Board issued a very sound decision that wisely tried not to go broader than it needed to. Although critics will say otherwise, the bottom line is that Purple is not a radical decision. Register-Guard was the aberration by flauting both Supreme Court and basic common law. In Purple, the Board merely reversed an error and extended well-established precedent to a mode of communication that isn't even that new anymore.
Tuesday, December 9, 2014
It's official. On Monday, the Senate voted to confirm Lauren McFerran to the NLRB by a 54-40 vote. It's great to have the NLRB remaining at full strength and, while I'm disappointed not to see Sharon Block back, McFerran looks like she'll be really good.
Hat Tip: Patrick Kavanagh
Thursday, December 4, 2014
Bill Herbert writes to inform us about a couple of announcements from the The National Center for the Study of Collective Bargaining in Higher Education and the Professions. The first is the Center's 42nd Annual Conference, at the CUNY Graduate Center in NYC, from April 19-21, 2015. The topic is "Thinking about Tomorrow: Collective bargaining and Labor Relations in Higher Education. As you can see from the conference website, there is an impressive list of panels and speakers.
Also, the Center has made available online all of its bimonthly newsletters from 1973-2000. The website containing the archive notes:
Between 1973 and 2000, the National Center published a bimonthly newsletter with contributions from directors and newsletter editors Maurice Benewitz, Thomas Mannix, Theodore H. Lang, Aaron Levenstein, Joel M. Douglas, Frank R. Annunziato and Beth H. Johnson. In addition, issues of the newsletter included contributions by other scholars including Clark Kerr, Fred Lane, Clara Lovett, Stephen Joel Trachtenberg, Myron Lieberman, Irwin Polishook, Matthew Finkin, Richard W. Hurd and Richard Chait.
Over its 27 year publication history, the newsletter contained articles, analysis and data on subjects that continue to be topical in higher education and the professions including: the impact of the Supreme Court’s Yeshiva University decision, the organizing and representation of adjunct faculty and graduate students, academic freedom and tenure, shared governance, discrimination and faculty strikes. The final issue of the newsletter appeared in 2000 with excerpts of a speech given by then AFL-CIO President John J. Sweeney at the National Center’s 28th annual conference as the first annual Albert Shanker Lecture.
Steven Greenhouse has announced that he, along with many other reporters, is taking a buyout offer from the New York Times. This is bad news for the labor community, but certainly a well-deserved move, so I congratulate him. Greenhouse has long been the go-to guy on labor reporting, not only because he's been basically the lone major media labor reporter, but also because of the high-quality of his reporting. That said, it's seemed to me that there's been a growing crop of young reporters working on the labor beat. Although they've been largely at smaller news organizations or blog-type pages at bigger outlets, there's been some really good work from these reporters over the last few years. Greenhouse can probably take credit for blazing a path for these reporters and if his legacy is a bigger pool of labor reporters--after labor reporting had seemed dead--then that's a major accomplishment by itself.
Here's the email that Greenhouse sent colleagues, quoted from Capital New York:
This has been one of the toughest decisions of my life," he wrote. "I love the Times, I love my job, and I love my colleagues here." He explained his rationale for taking the Times' offer. "The Times made a generous buyout offer that was hard to refuse. That and the fact that two good friends—both also 63, both terrific journalists—died over the past few months really pushed me to take this step and begin my next chapter. Also, I realize that I need to slow down, at least somewhat. I work too damn hard—that’s my fault, not the NYT’s." As for his next steps, Greenhouse said that he's working on a book—to be published by Knopf—about workers, and will also be freelancing for the Times.
Best of luck!
The Senate's HELP committee has approved Lauren McFerran's nomination to the NLRB by a party-line vote (12-10). The early timing of the committe's action is probably the most important fact, as it seems to indicate an intent to have a full Senate vote before the end of the year--and the changing of the Senate majority to Republicans. It's looking, therefore, that the Board will have it's full five members until at least August 2015, when Harry Johnson's term expires (there could be a minor delay between Nancy Shiefer's term, which ends on Dec. 16 and McFerran's confirmation). Given that Johnson is Republican, we could see his seat filled in a timely fashion, although I wouldn't bet either way on that one.
Hat Tip: Patrick Kavanagh
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Thursday, November 27, 2014
New technology meets old-school labor unrest. Recently, the online ride service, Uber, has faced a series of collective actions by its drivers, which have objected to the increasingly tight terms and conditions of their relationship with the company. One of the many interesting aspects of this dispute is that the drivers, like many taxi drivers, are classified by Uber as independent contractors. That doesn't stop the drivers' ability to engage in work stoppages, but it of course eliminates any legal protection against retaliation. However, there's currently a suit pending in San Francisco challenged the classification, so things could get more interesting.
Hat Tip: Michael Duff
Saturday, November 15, 2014
A little self-promotion. My article, The Supreme Court's 2013-2014 Labor and Employment Law Decisions: Consensus at the Court, which is appearing in the Employment Law and Employment Policy Journal, is now on SSRN. In the article, I examine all the labor and employment cases this term, plus some related cases and recent grants of cert. I'll also note that I spend a lot of time on Harris v. Quinn, including what I view as the more significant aspects of the decision: the Court's take on joint employment and the First Amendment in the workplace.
Also check out Jonathan Harkavy's latest Supreme Court review, 2014 Supreme Court Employment Law Commentary. He looks behind the veneer of consensus this term to argue that the Court's conservative majority still hasn't changed its stripes--a view with which, despite my title, I completely agree.
Finally, FWIW, my 2012-2013 Supreme Court review is here.
Thursday, November 13, 2014
VW has announced that it will recognize members-only unions at its Chattanooga plant. Following the UAW's inability to get the necessary 50%+ votes to become the exclusive reprentative for all unit employees, this represents a second-best solution. According to reports, the plan will be to create a three-tiered classification for unions that show support from at least 15%, 30%, and 45% of employees. All of these groups will be able to meet with HR officials at least once a month as representatives for their members. Those with 30% or 45% will be entitled to some unspecified additional rights.
This is all very interesting and I'm curious to see how it works. What is less clear is whether this type of arrangement will have much purchase beyond a foreign corporation with union ties as strong as VW.
Unfortunate news today for Sharon Block, whose second nomination to the NLRB was pending in the Senate. The White House has confirmed earlier reports that, facing Republican opposition based on the nutsy argument that she's unfit to serve because of the recess appointment issue, they are pulling her nomination. Really too bad for many reasons, not least of which is that Sharon was and would be an excellent Board member.
The very important silver lining with this move is that the White House is nominating Lauren McFerran (chief labor counsel for the Senate's Health, Education, Labor, and Pensions committee) for Block's slot. It sounds like this is partly with the assent of Republicans which, if true, is very good news for the NLRB as a whole, in that it assures the agency of having a full complement of members. Of course, it's unclear why it matters what the Republicans think given that the Democrats still have the majority during the lame duck session. Perhaps this was a fig leaf from the White House, but I really don't know.
Hat Tip: Patrick Kavanagh
Wednesday, November 5, 2014
Although labor-side advocates would be hard pressed to put a poisitive spin on yesterday's elections, there is one silver lining for those folks. In four states, voters approved measures to increase their state's minimum wage. What's suprising is that they were all traditionally red states: Alaska, Arkansas, Nebraska, and South Dakota. And the margin of vistory wasn't really close, with approval gaining support from 69%, 65%, 59%, and 53%, respectively.
The states vary in the time period and amount of the increase, with the final minimum going to $9.75 in Alaska, $9 in Nebraska, $8.50 in South Dakota, and $8.50 in Arkansas. This isn't like $15/hour Seattle, but is fairly impressive for electorates not usually sympathetic to employee-side legislation.
Thursday, October 23, 2014
- The Office of Special Counsel just found the U.S. Army gulity of harassment against a transgendered employee. It shows how the recent executive order can help such employees, but also why such protection is needed.
- Harold Meyerson on a bill that would eliminate tax deductions for "performance-based" executive pay above $1 million.
- In These Times takes a look at TV reality show writers in an article by a former writer. In addition to shedding light on the work conditions on reality shows, it illustrates the difference that unionization can make, as well as the fact that not all of Hollywood is unionized.
- Will an NLRB complain against McDonald's come soon? Politico's Morning Shift looks at some recent comments about the case.
- New York's Pregnant Workers Fairness Act is one year old. If employers and employees don't know about, does it matter?
- The White House delays new rule extending the minimum wage and overtime laws to home health care workers until July.
- The Fourth Circuit holds that Craig Becker's recent appointment to the NLRB was valid.
- Seminary professors engage in walk off to protest Dean's management of school (there's some pretty bad allegations). The professors--80% of the faculty--are fired as a result. Too bad the ministerial exception leaves them without protection.
Hat Tip: Michael Duff, Jonathan Harkavy, & Patrick Kavanagh
Wednesday, October 8, 2014
Last week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit. In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status. Instead, the court held that the principal focus was entreprenurial opportunity. In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test. Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.
As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development. There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention. I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding. But we'll see. In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
The NLRB recently issued its decision in Purple Communications. This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services. Only it didn't.
In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost. However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."
It's not clear why the NLRB decided to table the Register-Guard issue at this point. It could be any number of things--for instance, a desire to resolve the election at issue sooner. But those of us who have been interested in this issue, the bottom line is more waiting.
Sunday, September 7, 2014
An important civil rights advocate passed away recently. George Barrett was a long-time civil rights lawyer in Tennessee, who took on numerous, important cases over the years. The most high-profile was the Geier case, which helped desegregate the University of Tennessee system. One sign of his success was the difference that time makes. The University fought hard against the suit when it was brought and throughout part of its enforcement period. However, in the end, as a judge looked like he would rescind the order mandating diversity efforts (which did, in fact, happen), the University was not happy because it might undermined those efforts.
It might never have happened without Barrett and his presence will be sorely missed.
Hat Tip: Jonathan Harkavy
- Want to work for a company that provides work schedules in advance? Try a unionized one. The NY Times explains that they still exist, such as Macy's.
- Another round of accusations that Apple contractors in China are committing labor abuses. On the bright side, we're at least in an era where Apple and other companies regularly audit their contractors. Whether those audits do much is a different question.
- The fast food "Fight for Fifteen" protests continue, and this time there's more civil disobedience and arrests. Steven Greenhouse reports.
- Another Greenhouse story, this time on prevalence of wage theft suits, including fast food restauarants. It emphasizes that wage theft actions can target contractors and franchisees of companies that are targets of other types of pressure (e.g., Wal-Mart and fast food companies). The story also shows that government enforcement efforts can be an important protection for workers, especially lower-wage ones who might have a hard time hiring attorneys.
- An interesting interview with Rich Yeselson, a lang-time labor activist. He provides a nice, thorough defense of unions' role in the modern economy and why they are still relevant.
- A story on the Market Basket dispute, focusing on the fact that the employees--which were successful in getting a favored CEO back--were non-union. It's a good reminder that the NLRA doesn't just protect unionized employees.
- FedEx loses a dispute over drivers' classification as employees or independent contractors. The case is notable because the Ninth Circuit distinguishes the D.C. Circuit's stress on entrepreneurial opportunity. There doesn't appear to be a direct circuit split yet, but it wouldn't surprise me to see the Supreme Court step in on this issue eventually.
- And, finally, just for fun: 11 jobs that no longer exist. If my mornings are illustrative, I think there's still a market for "knocker-uppers."
Saturday, September 6, 2014
As I've been gathering material for another labor and employment law roundup, I felt compelled to give the following story it's own post. McClatchy papers have a series, Contract to Cheat, that gives a detailed look at the independnt contractor problem. Among many other things, they've gotten access, through a FOIA suit, to government contractor payroll reports for HUD projects. Using those reports, as well as other reporting, the serious provides a thorough examination of the problem and its impact on workers and the industries they work for.
This is really worth looking at. It's got some good data for scholarship, as well as material worth highlighting in class. Definitely check it out.