Wednesday, August 31, 2011
The Sixth Circuit issued an important arbitration opinion yesterday in Hergenreder v. Bickford Senior Living Group, LLC. The plaintiff in the case was a registered nurse, who shortly after being hired, had to take a leave of absence for cancer treatment, and was subsequently fired because of that leave. Hergenreder wanted to sue Bickford under the ADA, but Bickford asserted that she had to arbitrate her claim, and the district court agreed. The Sixth Circuit disagreed and so reversed and remanded the case to proceed.
The arbitration clause was contained in a dispute resolution policy. That policy was not itself contained in the employee handbook. Instead, in one brief sentence, the employee handbook stated that there was a dispute resolution policy and that employees should look at it for the details. Hergenreder signed a form stating that she had read and understood that handbook, but the Sixth Circuit ruled that there was not sufficient evidence that Hergenreder had been informed of the arbitration policy and actually agreed to be bound by it. The employee handbook itself never mentioned arbitration, and although the policy statement the handbook referred to had an explicit arbitration clause, and did state that agreeing to the arbitration clause was a condition of employment, there was no separate acknowledgement by Hergenreder that she had been notified of the contents of the dispute resolution policy. The oblique reference in the employee handbook was not enough to constitute an offer under state contract law.
It also seems to have helped that Bickford's employment handbook was carefully worded, as many are, to make clear to employees that the policies it contained were not binding on it. To drive that point home, the handbook stated "“[t]his handbook is intended as a summary only and is not a contract between Bickford Cottage and its employees." It further provided, in a separate section,
This handbook has been provided to you for the purpose of acquainting you with the personnel policies and procedures, responsibilities of Bickford Cottage. It does not constitute a contract of employment in whole or in part. Bickford Cottage may add to, change or delete any of the contents at any time with no notice.
This is an important lesson for employers, I think, on information management and clarity of communications. On the one hand employers don't want to be bound by most things that are put into employee handbooks, but use those as a way to let employees know what is expected of them to up front, which is a good business practice to create a sort of due process of the workplace. That kind of informal due process tends to make employees more comfortable, both because they feel like they know what to expect, and because they have at least an impression that the employer will act fairnly and consistently. Employers want to be able to be flexible, though, to address situations they hadn't envisioned or to change with changing circumstances.
On the other hand, employers do want employees to be bound to arbitration agreements. To be sure that they have created a contract for that, employers have to be careful about the amount of information they give employees at one time, and the manner in which that information is delivered. Having a separate arbitration policy made sense here, and this employer even had a form that employees were to sign, acknowledging knowledge of the policy (and presumably acceptance by accepting employment). The problem was that Bickford could not show that Hergenreder had actually received a copy of that policy or that she had signed any acknowledgement form. No actual knowledge here, no offer and acceptance, and no contract.
Tuesday, August 30, 2011
Redstate.com [(a conservative organization) and Media Matters (a liberal organization) are in a public political fightin which the NLRB posting requirement is a skirmish]. Redstate went on to call Media Matters out as being a supporter of workers rights, but not having an organized workforce itself. Here's where it get interesting. Redstate then makes an offer to Media Matters employees, that it is willing to help them organize. So my question is does that offer violate NLRA 8(a)(2) or some other law? 8(a)(2) makes it unlawful for an employer to offer aid or support to a labor organization- but what if it's somebody else's employees? Is it Ok for "an employer" to aid/support so long as it's not "the Employer"? Is there some other law out there which prevents employers from supporting unions in this way?
Not surprisingly, some bigger cases decided at the end of Wilma Liebman's term are coming out. I haven't had time to read these yet (the Board just issued an announcement on them), but the summaries given by the Board follows. The first two cases deal with challenges to a union's majority status. In addition to the specifics detailed below, the Board define “a reasonable period” of time under the new (or new-old) rules: in voluntary recognition cases, a reasonable period will range from six months to one year, depending on the circumstances. In successorship cases, a reasonable period will be six months if the new employer follows the existing contract, and up to one year if the new employer imposes its own terms and conditions.
focuses on the new bargaining relationship created by an employer’s voluntary recognition of a union based on a showing of support by a majority of employees. For over forty years, federal law had barred challenges to a union’s representative status for a “reasonable period” following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Today’s decision in Lamons Gasket returns the Board to the law as it existed before Dana Corp.
In the second decision, UGL-UNICCO Service Company, the NLRB reversed MV Transportation's expansion of employees' ability to challenge a union's status following a sale or merger of the company:
It overrules the 2002 Board decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30% of employees, the new employer, or a rival union. The MV Transportation decision in turn reversed a 1999 decision in St. Elizabeth Manor, Inc., under which the new bargaining relationship between the incumbent union and the new employer was held to be protected for a reasonable period of time without a challenge to the union’s representative status. Today’s decision returns the Board to that doctrine.
Finally, a third case--addressed in a separate announcement--is Specialty Healthcare. That case deals with appropriate bargaining units in non-acute health care facilities (acute care facilities have their own published rule). Specialty Healthcare:
overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces. The Board majority found that the 53 CNAs who sought an election in Specialty Healthcare constituted an appropriate unit, and remanded the case to the region to schedule an election.
The line-up was 3-1 in all of the cases, with the usual suspects on each side.
Hat Tip: Patrick Kavanagh
People who take care of people
get paid less than anybody
people who take care of people
are not worth much
except to people who are
sick, old, helpless, and poor
people who take care of people
. . .
come and go without much fuss
unless they don’t show up.
Monday, August 29, 2011
ABA Journal of Labor & Employment Law
Volume 26, Number 3 (Spring 2011)
- Tyler Wiese, The Editor's Page, p.v.
- Richard L. Alfred & Jessica M. Schauer, Continuous Confusion: Defining the Workday in the Modern Economy, p.363.
- Scott Brutocao & Angela N. Marshall, Cost-Saving Options for Employers and Other Wage and Hour Issues, p. 383.
- Allan G. King & Rod M. Fliegel, Conviction Records and Disparate Impact, p. 405.
- Bill Lurye, On the Legitimacy of a Mathematical Evaluation of NLRB Decision Making, p. 427.
- Larry L. Turner, Has the Class Action Fairness Act Met Expectations for Wage and Hour Employment Litigation?, p. 439.
- Kaitlin Picco, The Mixed Motive Mess: Defining and Applying a Mixed-Motive Framework, p. 461.
- Elizabeth Dahlstrom, ERISA Section 510 Should Be Interpreted to Cover Internal, Unsolicited Employee Complaints, p. 481.
- Review of the Labor and Employment Law Decisions of the United States Supreme Court's 2009-10 Term, p. 501.
Jean Sternlight (UNLV) sends the following message:
On behalf of the Saltman Center for Conflict Resolution I am delighted to announce a symposium in which I hope many of you will be interested. Our focus is democracy in the workplace, and the symposium will be interdisciplinary in nature. See the attached attached call for papers for details, and I hope many of you will choose to participate. Remember, Las Vegas is quite nice in February.
The symposium will be held February 24-25, 2012; the deadline for abstracts is September 30, 2011.
- Kathryn L. Moore, The Future of Employment-Based Health Insurance After the Patient Protection and Affordable Care Act, 89 Nebraska L. Rev. 885 (2011).
- Maura Strassberg, An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference with Former Employee Non-Disclousre Agreements, and the Threat of Disqualification, Part I, 89 Nebraska L. Rev. 923 (2011).
Saturday, August 27, 2011
Today is NLRB Chairman Wilma Liebman's last dayon the Board (at least for now). From the Board's press release:
National Labor Relations Board Chairman Wilma B. Liebman, who has served on the Board for nearly 14 years and under three presidents, will leave the agency at the completion of her third term at midnight today, August 27.
The White House has designated Member Mark Gaston Pearce to be Board Chairman upon Chairman Liebman’s departure.
Chairman Liebman was first appointed to the Board by President Bill Clinton and was confirmed by the Senate in 1997. She was reappointed by President George W. Bush in 2002 and 2006, and was designated Chairman by President Barack Obama on January 21, 2009. She is the third longest serving member in the Board’s 76-year history.
Before coming to the NLRB, Ms. Liebman served as Deputy Director of the Federal Mediation and Conciliation Service and as counsel to two international labor organizations.
“It has been a privilege to serve on the Board and to work with people committed to carrying out the important mission of this agency,” Chairman Liebman said. “The values embodied in the National Labor Relations Act – which gives Americans a voice at work and helped to build a middle-class society – are enduring. I am confident that the Board will hold fast to those values, even in challenging times.”
As an academic, I've always appreciated Liebman's efforts at outreach; as many readers know first-hand, she's regularly participated at a wide range of scholarly events in an effort to help others' understanding of labor law, as well as to help the NLRB too. And, of course, her seat is not being replaced, leaving only three members on the Board and the possibility of only two once Becker's recess appointment expires at the end of the year.
Friday, August 26, 2011
[I]n a weird way canoodling with women kept me alive to the fact that it’s foolish to shut down my sexual self in the company of the opposite sex. It can be useful, even at work. Don’t get me wrong; I’m not trying to kiss my way to the top. It’s more subtle than that. I work at a fashion magazine, where women are my bosses, colleagues, friends. And with all of them, I’m aware that my masculinity, my attractive guyness, is part of what I offer. Obviously, my professional skills are more important, but if a coworker or superior thinks I’m cute or captivating in some way, great! That gravitational pull is mine to leverage as I can.
Hope Elle is employment-lawyered-up.
Vicki Salemi writes in Psychology Today:
... [w]we need to brand ourselves. [Psychology professor Steven] Balzac suggest[s] focusing around personal attributes and what your brand will mean to others. What can you bring to the table? He state[s], "For an employee, this usually means branding yourself as someone who produces results for the company. Specific details will vary according to the industry: a software engineer might build a brand as someone who writes bug-free code or who always delivers ahead of deadlines, etc. A salesman might build a brand around closing the most difficult clients, around rapid closure, around rescuing faltering deals, etc."
Very true, both for lawyers and for academics, because both are reputational industries. What's your brand?
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his article Supreme Court of the United States Employment Law Commentary 2010 Term. He'll be presenting the article in Charleston this October. Here's the to-the'point abstract: "This paper reviews all of the employment-related decisions of the Supreme Court of the United States for the current term ending in October of 2011."
Thursday, August 25, 2011
It's now official: the NLRA has joined most other major labor and employment statutes that enjoy mandatory notice postings in the workplace. Following the notice and comment period after its introduction of the proposed rule, the Board issued the final rule today. Member Hayes dissenting, largely because he believed the Board lacked authority to issue such a rule and that the intent is to increase union density rather than inform workers. From the press release:
The National Labor Relations Board has issued a Final Rule that will require employers to notify employees of their rights under the National Labor Relations Act as of November 14, 2011.
Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites. Copies of the notice will be available from the Agency’s regional offices, and it may also be downloaded from the NLRB website.
The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.
The Board received approximately 6,500 comments during the 60-day comment period following publication of the Proposed Rule in the Federal Register, and accepted an additional 500 that arrived after the deadline. In response to the comments, some parts of the rule were modified. For example, employers will not be required to distribute the notice via email, voice mail, text messaging or related electronic communications even if they customarily communicate with their employees in that manner, and they may post notices in black and white as well as in color. The final rule also clarifies requirements for posting in foreign languages. Similar postings of workplace rights are required under other federal workplace laws.
Although I would have liked to see more electronic notices, I think this is a good step towards informing workers about their labor rights. Despite the dissent's view, it's pretty obvious that a large proportion of employees have no clue about their labor rights. However, I don't think it's going to dramatically change union density either--there are too many other factors at play.
Wednesday, August 24, 2011
The NLRB has issued what may be the front of a wave of important decisions before Chairman Liebman's term expires at the end of August. In this case, Stericycle, Inc., the Board reversed its Novotel rule for dealing with union-backed employment law suits before an election. At issue is whether union assistance with such suits constitutes an improper grant of benefit that might warrant re-running the election if the union wins. Under Novotel, a union may give employees free legal services to investigate, prepare, and file a lawsuit during the critical period before an election. However, the D.C. Circuit has refused to enforce that rule, prompting the majority in Stericycle to reverse it and conclude that such assistance is objectionable conduct.
The key ruling in the decision, which Members Becker, Hayes, and Pearce joined, is that:
we hold that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the “critical period”—between the date of the filing of the representation petition and the date of the election, which States claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.
The Board acknowledged the importance to employees' collective rights that education about their workplace rights, attorney referrals, and funding for lawsuits provides. But those interests were outweighed by the need to avoid the grant of benefits before an election (Novotel distinguished funding extraneous benefits with funding lawsuits directly related to the workplace problems that lead to the union campaign). The Board also argued that the harm to employees' collective rights was minimal because of the critical period was only for a limited amount of time. Further, funding a lawsuit before the critical period remains unobjectionable conduct.
Liebman dissented on this issue, as she would keep the Novotel rule, although she acknowledged that altering the rule in reaction to the D.C. Circuit was "prudent." But she views the balance of interests differently. To Liebman, the new rule forces employees to choose between a union election or a lawsuit enforcing their employment rights. She stresses that employees don't know the timing of the critical period in advance. She also questions whether the new rule is suppressing employees' right to petition the government, citing BE & K.
The Board, with Liebman, Becker, and Pearce signing on, also tried to define the boundaries of permissible and impermissible assistance. According to the Board, is is OK for a union during the cirtical period to "inform employees about their rights [under labor and employment laws], assist them in identifying violations, urge them to seek relief, and even refer them to competent counsel [which may file suit during the critical period as long as there is no union funding] without casting into question subsequent election results." Hayes objected to guidelines that might be reversed by appellate courts and that provide unions with a "manual on how they can provide gratuitous benefits to voters before and during the critical period without engaging in objectionable conduct."
Finally, the lineup on this decision should be a retort to everyone who argued that Becker would do whatever the unions want. His willingness to call it like he sees it shouldn't come as a suprise to anyone who's actually spent the time to look at his work, especially his academic stuff. But it's nice to see such a stark affirmation. Not that it will stop the opposition to his nomination.
There will no doubt be several more big cases coming soon, so stay tuned.
Hat Tip: Patrick Kavanagh
We've reported on some of the recent discontent with Democrats that is felt among labor leaders. In a similar vein, AFL-CIO president Richard Trumpka, in an interview with The Huffington Post, signaled a shift in the union's political strategy. Although he reiterated his support for Obama, he decried the current environment as the worse he had seen. As a result, he is going to attempt to shift the union's campaign operations from focusing primarly on elections to a broader effort aimed also at lobbying lawmakers after the election.
Some specifics appear to be establishing permanent campaign operations that don't end after an election, creating a super PAC, and bolstering their network of local community workers. The results of these changes remain to be seen, so stay tuned.
Hat Tip: Michael Duff
On Sunday night, faculty at Central Michigan University went on strike; classes were set to start the next day. Faculty were upset with the central administration over its perceived unwillingness to bargain in good faith over a new contract. One example cited by the faculty was its offer to accepted no salary increases this year if tuition remained level. The school rejected that offer and tuition increased by 3.5%.
However, on Monday, a judge issued a temporary restraining order against the walkout, which the union has said it will comply with. There will be a hearing on Friday and a state "fact-finder" (who will recommend new CBA language) will meet with the parties in early September, so they'll likely be more developments, especially given several other Michigan colleges facing contract expirations next year.
Hat Tip: Michael Duff
Tuesday, August 23, 2011
SInce the initial uproar over the Boeing complaint, I've been sitting back and waiting for the hearing and ALJ recommended decision stage to wrap up. But a recent column by the NY Times' Joe Nocera has prompted me to post something yet again. When a columnist whose most recent notoriety was calling Tea Partiers "terrorists" writes a column that looks like it was written by Boeing, I just can't resist. I won't comment on his positive descriptions of Boeing, which many in the labor field might take issue with, but instead focus on his erroneous description of the case and the NLRB.
Nocera starts by claiming that he is "mildly obsessed" over the issue. I'd suggest that he make the obsession stronger, because it's apparent that he hasn't taken the time to read the complaint, read the NLRB's statements on the complaint, talk to anyone who knows the law, or even spent five minutes on the NLRB website to determine its basic structure and function.
Nocera at least said there was a "complaint" at issue rather than a decision, although he doesn't seem to understand the difference between the NLRB and the NLRB's General Counsel. Indeed, he states that most of the Board's "top executives" were nominated by Obama, without recognizing that the GC is the only political appointee who has looked at this case.
Nocera also messes up the GC's proposed order. The GC did not say that all the South Carolina jobs have to be moved back to Washington. As the NLRB's press release clearly stated: "To remedy the alleged unfair labor practices, the Acting General Counsel seeks an order that would require Boeing to maintain the second production line in Washington state. The complaint does not seek closure of the South Carolina facility, nor does it prohibit Boeing from assembling planes there." That may seem like splitting hairs given the economics involved, but Nocera and others are wrong to say that the NLRB is trying to take jobs away from a certain area. If Boeing wants to keep future work in SC, it can. Besides, the reality is that if Boeing were to lose, the likely result would be to pay the Washington workers backpay (and maybe some frontpay) in lieu of moving the work.
This touches on a more general misconception that the NLRB is asserting some new, broad power to dictate work locations. As anyone in this field knows, employers have a wide latitude to place work wherever they want, especially if it's new production or the shutting down of current work (anyone remember Wal-Mart stopping in-house butchering, "coincidentally" after the butchers voted for a union? There were no NLRA violations resulting from that.). One exception, however, is Section 8(a)(3), which essentially says that even normally lawful actions will be unlawful if made for the purpose of encouraging or discouraging union activity. That is exactly what the GC is arguing that he has evidence of here.
Now, it's often very difficult to prove discriminatory intent. That's why 8(a)(3) cases often involve stupid comments by managers, such as the Boeing official here who tied the location decision to the union's past strikes (anyone know if that guy is still employed, because if he hadn't opened his mouth, there probably wouldn't have been a Boeing complaint). One can interpret that statement in the overall context different ways, and I think there are still unanswered questions about exactly what was going on. But that's why the NLRB holds hearings. So here's a novel idea: why don't we wait and see what evidence and testimony comes out of the hearing before making statements like "[i]t is a mind-boggling stretch to describe Boeing’s strategy as retaliation.'" If Boeing really based its decision on past strike activity, retaliation is exactly what happened. And, as Boeing well knows, this sort of retaliation has been clearly prohibited for decades, as it should be (for readers not well versed in labor law, think about what would happen in the future if employers were free to exert economic harm on workers who have shown a willingness to exercise their right to strike or other activities protected by law).
What we have in the Boeing case is not a novel interpretation of the law. It's an argument about the facts, specifically the motivation of the employer. Motivation is a very tricky thing to figure out and there will no doubt be different interpretations of the evidence on this question. But the histrionics over the mere filing of a complaint (not to mention congressional attempts to influence the outcome of the subsequent decision)--before the hearing evidence has been released or any factual findings have been made--is completely unjustified here.
OK, for those of you who actually stuck with me this long, my rant is done. At least for now . . . .
Monday, August 22, 2011
The EEOC has been hit with another large attorneys fees award ($2.6 million) for filing suit on behalf of plaintiffs without seeking conciliation first. In EEOC v. Cintas, the EEOC brought an action under 42 U.S.C. § 2000e-5 (§ 706 for those who like the section numbers of the public law instead) on behalf of a named plaintiff and a class of women. It's motion to certify the class was denied, and a motion to amend the complaint to a pattern and practice case (§ 2000e-6 or § 707 for those playing along at home) was also denied. The EEOC eventually named specific women it was suing on behalf of, eventually ending up with thirteen.
Because the EEOC did not attempt to conciliate on behalf of these thirteen women before it filed the action in the first place, the district court dismissed the action. See EEOC-V-Cintas-opinion. Because of this failure and other failures of the EEOC to cooperate during litigation, the court has granted this $2.6 million fee award against the EEOC. The court relied heavily on Judge Reade's decision in a similar case, EEOC v. CRST, decided last year.
These decisions seem to be hancuffing the EEOC in significant ways, limiting the ways the agency can seek class-wide relief, and elevating the conciliation requirement to a pretty high hurdle in any case that is not brought on behalf of a single individual. It's yet another obstacle to structural cases, and I can't help but think that it will totally frustrate the EEOC's ability to focus on systemic cases (part of its agency agenda) in its attempts to maximize enforcement of the employment discrimination laws while minimizing its caseload for the greatest amount of enforcement per federal dollar.
- Jason R. Bent, The Telltale Sign of Discrimination: Probabilities, Information Asymmetries, and the Systemic Disparate Treatment Theory, 44 J. L. Reform 797 (2011).
- Carlo A. Pedrioli, Respecting Language as Part of Ethnicity: Title VII and Language Discrimination at Work, 27 Harv. J. Racial & Ethnic Justice 97 (2011).
- J. Nicholas Haynes, On Precarious Ground: Binding Arbitration Clauses, Collective Bargaining Agreements, and Waiver of Statutory Workplace Discrimination Claims Post-Pyett, 2011 J. Disp. Resol. 225.
Saturday, August 20, 2011
Gov. Kasich in Ohio help spearhead the effort to enact a law restricting union rights more than the higher-publicized Wisconsin law. Throughout that effort, Kasich and other supporters made little, if any, real effort to negotiate or compromise with union supporters, as the Republicans clearly had the votes to pass the measure. In what can only be described as chutzpah, Kasich is now calling for union leaders to meet and talk with him about reforming the new law.
The reason for this sudden interest in discussion? A repeal effort that one poll estimates is favored by 24 points. Kasich is now asking for changes in the law in exchange for an abandonment of the repeal effort. You can guess the unions' response: repeal the law first, then we'll talk.
The poll does show support for some parts of the law (mainly those involving more benefit contributions by workers), but if the referendum ends up spiking the entire measure on Nov. 8, expect more fireworks when the legislature decides what to do next. Between the Wisconsin legislator repeal efforts (with one for Gov. Walker possible later) and the referendum in Ohio, labor law looks to stay on the political agenda for quite a while.
Hat Tip: Bill Herbert