Wednesday, December 30, 2009

Airline flight crews finally catch a break on FMLA leave

On December 21, 2009, President Obama signed into law the Airline Flight Crew Technical Corrections Act (S.1422, P.L. 111-119), legislation that amended the Family and Medical Leave Act of 1993 (FMLA) to make sure that flight attendants and airline pilots are able to qualify for leave benefits. The law closes a loophole that, because of the way many aircrews' hours were being calculated by the courts, effectively excluded more than 200,000 flight attendants and pilots from coverage under the FMLA.

New eligibility rules for airline flight crews make sure that flight attendants and airline pilots are able to qualify for leave. The 1,250-hour employment threshold requirement had been applied to flight attendants and flight crew members in some cases by not counting time spent between flights on layovers, either during the day or overnight, or on mandatory standby due to scheduling requirements as counting towards the 1,250-hour threshold. This effectively meant that pilots and flight attendants had to have 1,250 hours of actual in-flight time to qualify for leave—an anomaly, since federal aviation regulations, for example, prohibit pilots from flying more than 1,000 hours a year.

To address this, the FMLA was changed to provide that an airline flight crew member is eligible to take FMLA leave if: (1) the crew member has either worked or been paid for 60 percent of the applicable monthly guarantee--or the equivalent amount annualized over the preceding 12-month period; and (2) the crew member has worked or been paid at least 504 hours during the previous 12-month period (not counting personal commute time or time spent on vacation leave or medical or sick leave). Note that the 1,250 hours of work requirement to be eligible for leave is roughly equivalent to working about 60 percent of a traditional 40-hour workweek.

The “applicable monthly guarantee” for an employee on reserve status is the minimum number of hours for which the employer has agreed to pay the employee for the month, under either the collective bargaining agreement or by the employer's policies. For employees other than those on reserve status, "applicable monthly guarantee" is the minimum number of hours for which the employer has agreed to schedule the employee for any given month under the applicable collective bargaining agreement or employer's policies.

Tuesday, December 29, 2009

Senate rejects controversial NLRB nominee

The nomination of union attorney Craig Becker to the National Labor Relations Board (NLRB) has been rejected by the full US Senate, which last week returned the nomination to President Obama for reconsideration after failing to act on it before the close of the legislative session. By unanimous consent agreement on December 24, the Senate waived a standing rule that provides that all nominations upon which no actions are taken before the Senate adjourns are essentially rejected. Therefore, all pending nominations remain in status quo notwithstanding adjournment. However, Becker was among seven Obama nominees who were deemed “exceptions” to this agreement.

Becker, a former law school professor and attorney for both the Service Employees International Union (SEIU) and AFL-CIO, was formally nominated by the President in July, but his nomination has met with fierce resistance by the business community and Republican lawmakers. The US Chamber of Commerce, in a July 24 letter, urged the Senate Health, Education, Labor, and Pensions (HELP) Committee to hold a hearing on the nominee, citing concerns over Becker’s “out of the mainstream” views on the National Labor Relations Act (NLRA), as well as concerns that his SEIU ties would "lead him to advance `card check’ organizing through administrative action by the NLRB, regardless of what Congress does" with the Employee Free Choice Act. Other employer groups and industry associations have opposed Becker’s nomination as well.

Sen. Tom Harkin (D-Iowa), Senate HELP Committee chairman, downplayed these concerns. "[W]hile Mr. Becker has been a dedicated union lawyer for many years--and he has achieved an impressive record of success in that field--I am confident that he will approach his new position objectively and without bias," Harkin said at an October executive committee session on pending nominees. "Most labor lawyers devote their careers either to representing unions and workers or to representing management. We have confirmed Board members with both union-side and management-side backgrounds in the past without cause for concern. Like these past members, I am sure that Mr. Becker will approach the job with an impartial and open mind."

The HELP Committee confirmed Becker's nomination in October by a 15-8 vote, as Sen. Michael Enzi (R-Wyo), ranking committee member, agreed to move a package of three Board nominees forward despite "serious concerns with Mr. Becker’s writings--particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without Congressional authorization." (Becker was nominated alongside Democrat Mark Pearce, previously an attorney for the Board, and Republican nominee Brian Hayes, labor policy director for the minority on the Senate HELP Committee.)

Sen. John McCain (R-Ariz), however, put a hold on the nomination after it made its way out of committee. “I have concerns regarding Mr. Becker's written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer and I would like the opportunity to question Mr. Becker about these positions in person and in public,” McCain wrote, in a letter to Enzi. McCain’s hold on the nominee remains.

"There is no question that Mr. Becker has been thoroughly vetted for this position," said Harkin, noting the nominee had answered 282 written questions from Republicans.

Monday, December 28, 2009

E.O. provides anti-discrimination protections for gender identity to New York state employees

Add New York to the short list of states extending anti-discrimination protections based on gender identity or expression. Earlier this month, New York Governor David A. Paterson signed Executive Order No. 33, prohibiting any state agency from discriminating against state employees on the basis of gender identity. This includes, but is not limited to, hiring, terminations, job appointments, promotions, recruitment and compensation.

Currently, 12 states (California, Colorado, Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington), the District of Columbia and many municipalities and counties - including the City of New York - have laws prohibiting discrimination on the basis of gender identity and expression by in employment.“For generations, New York has been a national leader on civil rights, yet the state has lagged far behind in securing basic civil rights for transgender New Yorkers. I am proud to sign this important measure to not only bring workforce protection to the transgender community under the law, but to bring greater equality and civil rights to the State of New York,” Governor Paterson said. “From now on, transgender New Yorkers will be protected from discrimination because of who they are.”A longtime civil rights activist, Governor Paterson has supported the LGBT community throughout his public service career, in addition to his support of marriage equality. Shortly after taking office in 2008, the Governor issued a memorandum directing state agencies to recognize same-sex couples legally married outside of New York to the full extent permitted by law.

Under Executive Order No. 33, “gender identity” is defined as “having a gender identity, self-image, appearance, behavior or expression whether or not gender identity, self-image, appearance behavior or expression is different from that traditionally associated with sex assigned to that person at birth.” The order defines “state agency” to mean “any department, agency division, commission, bureau or other entity of the State over which the Governor has executive power.”

The E.O. requires all managers, supervisors and employees to make “diligent, good faith efforts” to ensure equal opportunity for all employees. The Office of Employee Relations, working with the Executive Director of the Division of Human Rights, is directed to develop and implement “clear and consistent” guidelines to be implemented by state agencies.

Several state legislators expressed support of the December 16th signing of E.O. 33. New York Senate Majority Conference Leader John L. Sampson said: “For too long, transgender New Yorkers have been denied the basic rights and legal protections others enjoy. Today, New York joins a proud chorus of states, cities and counties across the country who are standing up for the transgender community by prohibiting baseless and inexcusable discrimination. I applaud Governor Paterson for his leadership on this issue and commitment to the civil rights and equal rights movement.” “Governor Paterson deserves great credit for once again demonstrating his commitment to the entire LGBT community. He has carried the cause of transgender rights very far on his own today by prohibiting discrimination on the basis of gender identity or expression for employees of New York State agencies,” said New York Senator Thomas K. Duane. “Now, we must redouble our efforts to pass The Gender Expression Non-Discrimination Act (GENDA), which would ban discrimination against transgender and gender non-conforming people across New York State in housing, employment, credit, public accommodations, and other areas of everyday life. I have been pushing for this measure since 2002 when then Senate Minority Leader-Paterson and I fought for its inclusion in The Sexual Orientation Non-Discrimination Act (SONDA) and we will not stop working until equal protection under the law is a reality for all New Yorkers.”
New York Assemblyman Micah Z. Kellner said: “Discrimination against the transgender community - and against people that may not identify as such, but don’t look the way people expect them to - is unacceptable, but all too common. In this difficult economy, workers have enough problems without having to worry that they could lose their job due to bigotry without legal recourse. I am proud to stand next to Governor Paterson today and be part of this important announcement that protects our state employees. Soon, I hope the Gender Expression Non-Discrimination Act (GENDA) will pass both houses of the legislature, so that all New Yorkers may enjoy these protections.”

Wednesday, December 23, 2009

Year in review: "Top ten" developments of 2009

CCH editors provide our "top ten" list of the most significant developments in labor and employment over the past year (in no particular order):

Massive health reform still pending
A top story throughout 2009 was the ongoing daily drama involving the massive health reform overhaul. The fate of health reform still hangs in the balance but, as of now, the Senate appears poised to pass the measure with a final vote set for tomorrow morning. Differences between the House and Senate versions would still need to be ironed out in a debate that seems likely to last well into early 2010. Contrary to popular opinion, not all health reform provisions would take effect years down the road. If health reform is signed into law, employers would need to respond quickly. Exact health reform provisions could vary, but some areas employers should watch for include the need to: (1) eliminate cost-sharing requirements for a variety of preventive measures; (2) cover dependents until a later age; (3) modify all preexisting condition limits; and (4) revamp health summary plan descriptions to meet new requirements. Stay on top of the latest health reform news at CCH’s blog Health Reform Talk, where our benefits editors provide daily updates and expert analysis on the ever-changing developments.

H1N1 flu preparedness drives reexamination of employment policies
2009 was the year of the swine – flu, that is. The H1N1 flu virus emerged in March and was a global pandemic by June. In October, President Obama declared the H1N1 flu a national emergency. With the H1N1 threat, came a flurry of guidance on what employers should do about it. Employer preparedness implicates a whole host of practical and legal considerations including absenteeism, “presenteeism,” paid sick leave, vaccination programs, employee cross-training, telecommuting, travel, disability and employee communications. “Although the instances of H1N1 have not been as widespread as once feared, and the disease appears to be winding down for now, employer preparedness remains important,” says Joyce Gentry, CCH’s resident HR expert. “The wrong reaction could create liability for an employer under the various employment laws.”

Lilly Ledbetter Fair Pay Act signed into law
On January 29, amidst the worst financial crisis since the Great Depression, President Obama signed into law the Lilly Ledbetter Fair Pay Act (P.L. 111-2). Though not technically the first bill he signed—that would be legislation fixing the salary of the Secretary of the Interior—the Fair Pay Act is the first major legislation Obama signed into law, and the first having to do with labor and employment law. The law, seen as a legislative “fix” to the Supreme Court’s controversial May 2007 decision in Ledbetter v Goodyear Tire & Rubber Co, Inc, amends four anti-discrimination laws – Title VII, the ADEA, the ADA and the Rehabilitation Act – to restart the statute of limitations for filing a charge of discrimination each time a discriminatory paycheck is issued, not just when an employer makes an adverse pay-setting decision. So, what’s next for employers? “As a result of the law, employers must review their HR, benefits and compensation practices to ensure that they are consistently applied, both at the employee’s time of hire and during their tenure with the company to reduce the risk of any potential employer liability resulting from the Lilly Ledbetter Fair Pay Act,” said Brett Gorovsky, CCH WorkWeek editor.

Obama Administration ramps up enforcement of labor and employment laws…
The election of Barack Obama promised a renewed focus on new labor and employment law legislation. Eleven months into his first term, however, these laws have not yet surfaced. Instead, with Congress focused on Obama’s top legislative priority, health care reform, the Obama Administration has increased its enforcement of existing labor and employment laws in the areas of minimum wage, overtime and prevailing wage violations, federal contractor compliance, Form I-9 compliance and employee misclassification, which have not made employers very happy.

…while for OSHA, 2009 was the year of the record fine
The Obama Administration, vowing to aggressively enforce safety and health standards to protect America's workers, hit the ground running in 2009 with high penalty amounts, including a record-setting $87.4 million fine issued to BP Products North America, Inc, for its alleged failure to correct potential hazards at its Texas City, Texas, refinery, following a 2005 explosion that killed and injured many employees. The fine, which is the largest in OSHA's history, is being contested by BP. High fines were also proposed against other companies, including Tempel Grain Elevators, of Wiley, Colorado, for more than $1.6 million; G.S. Robins & Co, of St. Louis, Missouri, for more than $1.2 million; and Milk Specialties Co, of Whitehall, Wisconsin, for $1.1 million. "Even during these difficult times, when many companies are cutting back, these high fines are OSHA's way of sending a strong ‘zero tolerance’ message that worker safety cannot be compromised and that employers should look elsewhere to reduce their expenses," according to Laurel Gershon, CCH's resident OSHA expert.

Ricci: Tension between disparate treatment and disparate impact
The High Court adopted a new Title VII standard in its 5-4 Ricci v DeStefano decision, holding that before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, it must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The city of New Haven, Connecticut, failed to make this showing and, thus, should not have tossed the results of its firefighter exams solely because it feared litigation from black or Hispanic applicants who were disparately impacted by the exam. “If, after it certifies the test results, the City faces a disparate-impact suit, then in light of [our] holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability,” wrote the Court, reading the proverbial writing on the wall. "The decision underscores a tension between Title VII’s disparate treatment and disparate impact provisions that has created a real conundrum for employers," observed CCH employment law expert, Pamela Wolf. Fourteen of the white firefighters (and one Hispanic) who brought the case all the way to the top have since been promoted. And the writing on the wall materialized as a group of black firefighters filed a motion to intervene when, on remand, the city announced it would certify the exam results – an act that provided them with standing to challenge the test’s disparate impact, which has never been validated, they assert. Another black firefighter has separately filed a suit challenging the exam’s disparate impact.

Supreme Court raises the bar for plaintiffs in Gross and Iqbal
In June, the Supreme Court in Gross v FBL Servs, Inc ruled that the Title VII mixed-motive framework does not apply in ADEA cases, leaving age bias plaintiffs to prove age was the "but-for" cause of the adverse action taken against them. There is no question that the case has radically changed the ground rules for proving ADEA claims. (Some circuit courts, including the First, Third, Sixth and Seventh circuits, are interpreting the High Court’s decision somewhat differently, finding that because the Court had not made a definitive decision on the matter, the McDonnell Douglas framework can still be used to analyze ADEA claims based on circumstantial evidence.) And in Ashcroft v Iqbal, a non-employment case issued a month earlier, the Supreme Court imposed heightened pleading standards for plaintiffs of every stripe when it concluded that plaintiffs cannot survive a motion to dismiss by relying on "mere conclusory statements," but must instead set forth specific facts that establish "a plausible claim for relief." Much like what happened after the Supreme decided Ledbetter, Congress took notice: corrective legislation is already in the works with bills to overturn both decisions pending in Congress.

I'll see your no-match and raise you an E-Verify
In a major reversal of Bush Administration immigration policy, DHS rescinded its controversial 2007 no-match rule, while at the same time announcing the Obama Administration’s full support for E-Verify by increasing the reach of the program to require certain federal contractors and subcontractors, including those who receive Recovery Act funds, to use the program to verify the employment eligibility of their new hires and existing employees. “While it is unclear whether the Obama Administration or Congress will push to make E-Verify mandatory as part of its push for comprehensive immigration reform in 2010, what we do know is that the program, which has critics as far-ranging as business groups and immigrant advocacy groups, has been extended for three more years, and DHS has been given $137 million for FY 2010 to further improve its accuracy and compliance rates,” said Brett Gorovsky, CCH’s WorkWeek editor and resident immigration expert. While the agency is expected to make a number of enhancements to the program, including adding a self-check option to give job applicants an opportunity to check their employment eligibility before they submit to such a check by potential employers, employers must remember that besides contractors that are subject to the E-Verify federal contractor rule, E-Verify still continues to be a voluntary program for employers.

Validity of two-member NLRB rulings will be heard by the Supreme Court
With the precedential value of nearly 500 NLRB decisions at stake, the US Supreme Court granted cert November 2 in New Process Steel v NLRB (Dkt No 08-1457) to consider whether a two-member panel of the NLRB has the authority to hear cases and issue orders regarding unfair labor practice charges. Circuit courts have been split on the matter; the current score is 5-1 in favor of Board authority. In fact, just yesterday, the Tenth Circuit became the latest circuit to hold that the NLRB has the statutory authority to act with only two members. The NLRB has been operating with only two members for nearly two years. Rather than cease functioning, Chairman Wilma Liebman, a Democrat, and Member Peter Schaumber, a Republican, have continued to issue decisions in matters on which they can agree. The Board acted on the advice of the Justice Department’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007 and, since that time, Liebman and Schaumber, acting as a quorum, have issued nearly 500 decisions. The issue came to a head in 2009 with the Supreme Court’s decision to hear the case and determine whether years of NLRB authority should be upheld or thrown out. Meanwhile, three NLRB nominees (Brian E. Hayes, Mark G. Pearce and Craig Becker) are awaiting confirmation by the full Senate.

Economy goes into a free fall
The economy was big news, of course, in 2009—unrelenting news and, for much of the year, unnerving news. As 2009 draws to a close, unemployment has reached the 10 percent mark and, despite some positive signs, employers remain hesitant to add to their payrolls. Employers faced painful choices in 2009, forced to cut hours and workers—and they stared down the risk of lawsuits as a result. Amid the worst of it, CCH employment law expert Pamela Wolf offered guidance on complying with the WARN Act and other statutory obligations.

Monday, December 21, 2009

Fantasy of football league led to reality of firing

You can hardly go anywhere without hearing some discussion about the high national unemployment rate, and for many businesses these layoffs are directly linked to the economic woes brought on by the global economy. So it is no wonder why employers are tightening their belts and, because of this, employees are being as cautious as ever not to upset the balance between worktime and personal time out of fear of being fired.

As such, employees in today’s businesses need to pay extra-special attention not to get involved in those time-honored reasons for termination—i.e., harassment, fighting at work, repeatedly coming in late, poor work ethic, running a fantasy football league, improper use of Internet, etc. Wait a minute! Running a fantasy football league is not a reason to get fired, is it? It sure is, or at least it was for four employees who worked for Fidelity Investments in Texas, as they found out the hard way that violating the company’s gambling policy was less “fantasy” and more reality.

According to the Fort Worth Star-Telegram, one of the employees, Cameron Pettigrew, was called into an office to discuss what the company determined was a violation of its policies against gambling at work, as he was a commissioner for the league. He was fired soon after for violating the policy, as were three other employees. According to Pettigrew: "Firing a guy for being in a $20 fantasy league? Let's be honest, that's a complete overreaction," said Pettigrew. "In this economic time, especially. To fire people over something like this, it's just cold."

But Fidelity spokesperson Vin Loporchio responded, saying: “We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. In addition to being illegal in a lot of places, it can also be disruptive. We want our employees to be focused on our customers and clients.”

Although Pettigrew claimed he never used company e-mails to talk about his fantasy football league, investigators found two instant messages that pertained to fantasy football, which he explained was just a friend asking about a current football player. So, there are many ominous questions that one should ask: Was this even gambling? Did the employer have the right to terminate these employees? Do text messages about a fantasy football league really violate company gambling policies? Should employers be looking into employees’ text messages on (presumed) company phones?

The last couple of questions are somewhat being debated by the US Supreme Court (See: High Court to decide if SWAT officer will get Fourth Amendment slap across the mouth—deals with privacy of text messages on employer handhelds), and is left for further debate. However, the other questions present interesting issues for both employer and employee.

On one side of the spectrum, many could argue that employees need short breaks from the tedious “goings-on” within a workplace, and they get them without getting fired, e.g, going out to smoke, “water cooler” chats, etc. Also, these fantasy football leagues, if they don’t interfere with work, are really just ways for grown men and women to act like they run a team, and so they are less about gambling and more about having a little fun—or at least that is how many participants feel. And there is certainly no reason to fire someone for being a member of a league, because it is just a good-natured game.

On the flipside, employers have a duty to keep employees working and on task, and not playing “games.” Also, if a policy is clear about gambling, and if fantasy football is considered gambling (the Unlawful Internet Gambling Enforcement Act of 2006 declared that it is not gambling), then there seems little recourse for these employees, since a place of employment is for making money and not for bringing people together to play in fantasy football leagues. According to Fort Worth attorney Angela Robinson, an expert in employment law, interviewed by NBC Dallas Fortworth regarding this issue:

"As long as the policy is implemented across the board in a fair manner, applicable to all employees, then they can be fired, [but this] is new territory, I actually do a lot of employee handbooks. And I have never seen it in an employee handbook."

The problem is, what we have here are employees who seemed to really enjoy their jobs, and yet were fired for engaging in something recreational. This seems less like a lesson and more like a warning from employers. And the warning is simple: Tough economic times or not…high rate of layoffs or not…we are watching.

Much like articles about employers monitoring Internet use on the job, employees need to be aware of not only company policies, but also the fact that many employers are watching out for nonbusiness-like activities, and they are acting on what they find. So, employees need to understand that with financials down and business costs still rising, being fired for playing a “game” in today’s workplace is no fantasy, just a cold, hard reality.

Friday, December 18, 2009

BLS releases 10-year industry outlook

In an attempt to assess the evolving US employment picture, the Bureau of Labor Statistics last week released their projection of how various industries might fare within the next decade. In its 2008-2018 outlook, which shows an aging and more racially and ethnically diverse labor force, BLS predicts a whopping 96-percent increase in new jobs in service-providing industries. Total employment is projected to increase by 15.3 million, or 10.1 percent, during this period. The relatively slow growth rate for the earlier 10-year period was affected by the recession that began in December 2007, and the projected growth rate is higher than would otherwise be expected because the 2008 starting point is a recession year, BLS notes.

More than half of the new jobs are expected to be in professional and related occupations and service occupations. In addition, occupations where a postsecondary degree or award is usually required are expected to account for one-third of total job openings during the projection period. Job openings from replacement needs--those which occur when workers who retire or otherwise leave their occupations need to be replaced--are projected to be more than double the number of openings due to economic growth.

So, how are specific industries expected to fare? Aside from the expected employment growth concentrated primarily in the service-providing sector, continuing a long-term shift away from the goods-producing sector of the economy, BLS reports that the two industry sectors projected to have the largest employment growth are professional and business services (4.2 million) and health care and social assistance (4.0 million).

In a bad news scenario, however, the following ten industries projected by BLS to experience the largest wage and salary declines are as follows:

#1 Department stores: Government forecasts an industry loss of 159,000 jobs -- more than 10% -- over the next ten years.

#2 Semi-conductor and other electronic component manufacturing: BLS projects that the industry will lose almost 34% of its jobs by 2018.

#3 Auto parts manufacturing: Despite massive automaker bailouts, the government predicts the industry that serves those companies will lose almost 19% of its jobs.

#4 Postal service: The USPS employed 748,000 people in 2008, but the government anticipates the number will fall 13% over the next decade to 650,000.

#5 Printing and related support industries: BLS projects a 16% loss.

#6 Cut-and-sew apparel manufacturing: BLS anticipates that the industry will lose 57% of jobs by 2018.

#7 Newspaper industry: The worst may be yet to come with government estimates that jobs will decrease by nearly 25%.

#8 Mining support industry: the BLS estimates that approximately 23% of the jobs in this industry -- which as of 2008 sustained around 328,000 jobs -- will be lost by 2018.

#9 Gas stations: by 2018, the number of gas station industry jobs, which in 2008 stood at 843,000, is likely to be cut by 9%, according to the government report.

#10 Wired telecommunications carriers: predictions are that the wired telecommunications industry, which provided 666,000 jobs in 2008, will lose 11% of its employment opportunities by the end of the next decade.

The 2010-11 editions of the Occupational Outlook Handbook and the Career Guide to
Industries will feature the 2008-18 projections in assessing job prospects, work activities, wages, education and training requirements, and more for numerous occupations and industries. The updated Handbook and Career Guide will be available online on December 17, 2009, at www.bls.gov/oco and www.bls.gov/oco/cg/, respectively.

Thursday, December 17, 2009

Cintas’ most recent challenge to union corporate campaign falls short

I suppose Cintas Corp figured it was worth a shot, but a novel defense strategy attempted by the uniform and laundry giant in the face of unfair labor practice charges ultimately proved unsuccessful. Earlier this week, the Eighth Circuit enforced an NLRB order finding Cintas committed several violations of the National Labor Relations Act. The appeals court, like the Board below, rejected Cintas’ contention that, essentially, it was entitled to interfere and/or retaliate against employees who engaged in prounion activities because UNITE HERE has been waging an aggressive corporate campaign against the company.

The NLRB General Counsel filed a complaint against Cintas, alleging a series of garden-variety unfair labor practice charges. In a hearing before an administrative law judge, Cintas conceded its antiunion animus. It asserted in its defense, however, that UNITE HERE was carrying out an unlawful nationwide corporate campaign against the company and that the unfair labor practice charges were filed for illegitimate purposes related to this campaign; thus, any employee activity in support of the union is not protected under the Act. The union’s corporate campaign was unprotected activity, Cintas reasoned, because it involved “coercive and disloyal tactics” that were intended to force the employer into a neutrality and card-check agreement.

However, the ALJ excluded as irrelevant the evidence Cintas sought to introduce regarding the union’s corporate campaign. Whether individual employee activity was protected was to be determined based on the employees’ own conduct and motives, the ALJ reasoned, not on unrelated corporate campaign activity by the national union. To have imputed the union’s conduct to individual employees without proof of specific knowledge “would have perverted common law principles of agency and run contrary to the purposes of the Act,” he wrote. The two-member NLRB adopted this position, and held the ALJ did not abuse his discretion by refusing to admit the evidence about the corporate campaign.

The Eighth Circuit affirmed and enforced the Board’s order. As the appeals court wrote, “We have been unable to find a reported case in which an employer has sought to use a union’s national campaign as a defense to unfair labor practice charges involving individual employee activity, and Cintas has not cited any.”

“The proper venue for Cintas to raise its allegations about the national campaign by UNITE HERE would be through unfair labor charges against the union itself,” the appeals court added.

An ongoing counterattack. The defense posture before the NLRB was not Cintas’ first challenge to UNITE HERE’s ongoing corporate campaign, launched in 2003 as part of an aggressive nationwide effort to organize Cintas workers. The company has responded with a litigation counter-offensive against the hotel, restaurant and textile workers union. Perhaps no employer has fought back so forcefully against organized labor’s corporate campaign strategy. Cintas’ efforts thus far have met with varied success.

“For the last five years, UNITE HERE and other labor organizations have carried on a campaign of negative, untrue and unlawful attacks against Cintas in an effort to extort concessions from the company,” Cintas alleged in a 2008 press release announcing the filing of a lawsuit in the Southern District of New York. (The 2008 suit consolidated an ongoing defamation suit filed by the company in an Ohio state court in 2004.) Cintas alleged violations of the federal and state Racketeer Influenced and Corrupt Organizations (RICO) statutes, claiming the unions engaged in extortion, interference with existing and prospective business relationships and deliberate attacks in order to artificially depress the value of Cintas stock, among other unlawful conduct. The state suit also alleged UNITE HERE violated Cintas’ trademark rights, including “improper use of Cintas’ trade name and trademark in various websites designed to further the unions’ extortion and reputation-destruction campaign.” (The union had created a Web site, "cintasexposed.org," featuring negative information about the uniform company, with a link to the union's Web site and a disclaimer stating its origins and purposes.)

A district court dismissed the RICO complaints. The union’s efforts to secure a neutrality agreement did not rise to the level of criminal extortion, the court found, noting that “courts have held uniformly that such an agreement provides benefits to both an employer and a union.” Further, “Cintas does not have a right to operate free from any criticism, organized or otherwise,” the court wrote. The court dismissed the trademark claims as well; given the content of the Web site and its obvious disdain for Cintas, it was unlikely that customers would be confused about the relationship between the parties. In an unpublished ruling issued last week, the Second Circuit affirmed dismissal.

DPPA claim succeeds. While Cintas was not technically a party to the litigation, a lawsuit brought by Cintas workers, filed by the law firm that represents Cintas in labor matters, and publicly hailed by the company, managed to strike a blow against UNITE HERE—and to thwart a key tactic used by labor unions to communicate with workers in their organizing campaigns.

During its organizing drive, UNITE HERE employed a tactic known as “tagging” in an effort to locate employees’ names and home addresses so the union could approach the workers outside the workplace. The union copied the license plate numbers of vehicles in Cintas’ employee parking lots and then used the numbers to obtain names and addresses of their registered owners from databases containing state motor vehicle records. A group of Cintas employees filed a class action suit, alleging the union violated the federal Drivers Privacy Protection Act (DPPA), which forbids “knowingly disclos[ing] or otherwise mak[ing] available to any person or entity: personal information... about any individual obtained by the department [of motor vehicles] in connection with a motor vehicle record.” 18 U.S.C. § 2721(a).

A district court held the union violated the federal privacy statute, granting summary judgment to the plaintiffs and awarding $5 million in damages to Cintas employees. The Third Circuit gloat.

Not just Cintas. Other employers have filed suits against labor unions alleging corporate campaign tactics have violated the law. Sutter Health, a Northern California hospital corporation, successfully sued UNITE HERE in 2006 when a jury found the union defamed the hospitals during an organizing drive. The union was ordered to pay over $17 million in damages. And Smithfield Foods is the plaintiff in ongoing litigation against the UFCW and other union defendants in a federal district court in Virginia. The company alleges RICO and state law claims, contending the defendants’ corporate campaigns damaged Smithfield’s corporate reputation and that it lost profits and stock value as a result. The defendants sought to dismiss the RICO action, claiming the extensive list of corporate campaign-related conduct alleged by the company in its complaint was merely coercive activity and not extortion. The lawsuit survived the motion to dismiss, however, and the litigation is ongoing.

No doubt the litigation counter-offensives represent an ongoing challenge for unions. On the other hand, they are a grudging nod by employers to organized labor’s success in organizing workers through such nontraditional means.

Monday, December 14, 2009

High Court to decide if SWAT officer will get Fourth Amendment slap across the mouth

On the surface, the question seems simple and pragmatic: Does a Special Weapons and Tactics (SWAT) officer have a reasonable expectation of privacy in text messages sent from his work-issued pager – a pager used to make SWAT call-outs? Never mind the fact that SWAT officers, during the execution of their law enforcement duties, must always be mindful of the Fourth Amendment rights of ordinary citizens, and thus, would likely have a better than average understanding of Fourth Amendment law and privacy rights. It would seem that the SWAT officer in Quon v Arch Wireless Operating Co, Inc (9thCir, 91 EPD ¶43,233) could not have been anything but unreasonable in believing that the personal, and sometimes sexually explicit, text messages he sent from his work pager would be shielded from review by his employer.

As anyone prosecuting or defending criminal cases knows, police communications concerning criminal activity are generally discoverable – and are often subpoenaed by defense attorneys to determine whether Fourth Amendment rights have been violated. Further, under public disclosure laws, such as the California Records Act, records related to the conduct of public business may be subject to disclosure. Add to that potential media requests for police communications in high profile cases – the kind that involve SWAT teams – and disclosure of SWAT-related communications would seem predictable.

But the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment and state constitutional privacy rights of the SWAT officer, as well as the officers he texted, when, as part of a text message overage audit, it read transcripts of the messages the officer sent on his work-issued pager.

Anything but simple. As illustrated by the sharply divided Ninth Circuit’s order denying panel rehearing and rehearing en banc, the legal issues and the interpretation of the facts in this case are anything but clear. For starters, the concurring order, written by Judge Wardlaw (who also authored the Ninth Circuit opinion), insists that the appeals court did not, in determining the reasonableness of the scope of the police department’s search in auditing the records, impose a “less intrusive means” test. Judge Ikuta, authoring the dissent, urges with equal force, that the panel, albeit without acknowledgement, did in fact apply such a test in its analysis – contrary to Supreme Court precedent. (Assuming the dissent is correct, the Ninth Circuit created a circuit split as to whether the “less intrusive means” analysis should be applied in determining the reasonableness of government activity under the Fourth Amendment.)

The concurrence and dissent also differ in their characterizations of the police department’s policies and practices related to privacy and auditing of the pagers. However, there clearly was no written policy specifically directed to the privacy of text messages transmitted by the pagers.

Certiorari granted. Today, the High Court granted the City of Ontario, California’s petition for certiorari (City of Ontario v Quon, USSCt, Dkt No 08-1332). The questions presented to the Court are:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Implications for private employers? Of course, these Fourth Amendment issues arise in the context of government employment. But private employers and employees may have a stake in the outcome, too. With employees using internet forums to make sometimes disparaging comments about employers, and their frequent use of company equipment to visit favorite websites and communicate with personal acquaintances, employers will increasingly monitor such use. It seems likely that the police department’s privacy policy, or lack of a policy specifically directed to the pagers, will play a significant role in the Supreme Court’s analysis. To that extent, the outcome will be at the very least, instructive, and perhaps even, will point the way for employers seeking to avoid liability for violating employee privacy interests.

Friday, December 11, 2009

Regulatory agenda & corresponding webchat provide indications of OFCCP's enforcement focus

OFCCP Director Patrica Shiu's December 8, 2009 webchat on the agency's Fall 2009 regulatory agenda provided some indications on how the Obama Administration plans to enforce the EEO and affirmative action obligations of government contractors. In her webchat, Shiu said that the OFCCP "will vigorously enforce" the three laws under its jurisdiction - Executive Order 11246, Section 503 of the Rehabiltation Act and VEVRAA - "and will do so through both systemic and individual cases." She stated that the OFCCP "will not be exclusively focusing on systemic discrimination as we have in the past few years."

Update to construction contractor requirements. In its regulatory agenda, the OFCCP stated that it plans to issue a Notice of Proposed Rulemaking (NPRM) in January 2011 to revise the regulations in 41 CFR Part 60-4 implementing the affirmative action requirements of Executive Order 11246 that are applicable to federal and federally assisted construction contractors. In her webchat, Shui noted that the OFCCP's affirmative action regulations and goals applicable to construction contractors "were last updated about thirty years ago." "We know much has changed in the construction industry and workforce since that time," she continued. "As part of the rulemaking process, OFCCP will be reviewing barriers to equal opportunity in the construction industry including employment opportunities for women and minorities. OFCCP will also be considering how construction contractors may best ensure equal opportunities for all job applicants and employees."

VERAA and Section 503 requirements. According to the regulatory agenda, the OFCCP will publish an Advance Notice of Proposed Rulemaking (ANPRM) in December 2010 to revise the regulations in 41 CFR Parts 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, as amended. In particular, the ANPRM would strengthen affirmative action requirements by requiring federal contractors and subcontractors to conduct more substantive analyses and fully monitor their recruitment and placement efforts on behalf of individuals with disabilities. In December 2010, the OFCCP plans to issue an NPRM that would revise the regulations in 41 CFR Parts 60-250 and 60-300, implementing the nondiscrimination and affirmative action provisions of VEVRAA. The NPRM would amend the regulations to strengthen the affirmative action requirements by requiring that federal contractors and subcontractors to conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of numerical targets to measure the effectiveness of affirmative action efforts.

Regarding the forthcoming proposals to amend the Section 503 and VEVRAA regulations, Shiu commented that the "OFCCP will seek input from stakeholders on the type of statistical or other analyses that might be used by contractors to better monitor their employment practices with respect to applicants and employees with disabilities and protected veterans." The OFCCP will also "be researching existing data on the availability of qualified individuals with disabilities and protected veterans."

The regulatory agenda and corresponding webchat show that the OFCCP will continue with, and build upon, the increased focus on EEO and affirmative action requirements in regard to individuals with disabilities and veterans that started during the Bush Administration. Moreover, the long-neglected construction contractor regulations will be getting some much needed updating. Considering the significant regulatory changes being considered by the OFCCP, stakeholders should not miss their chance to comment on these proposals once they are published. Indeed, during her webchat, Director Shiu explicity encouraged comments on the upcoming proposals. Stakeholders will have an opportunity to hear further discussions regarding these upcoming proposals during three webinars (one for each new proposal) to be hosted by the OFCCP in January 2010. In addition, OFCCP officials will be hosting town hall meetings across the country in February and March. The specific dates and times for these events will be posted on the OFCCP website.

Wednesday, December 9, 2009

States extend anti-discrimination protections to include sexual orientation and gender identity

Thanks to recent news reports featuring Chaz Bono talking about going through gender reassignment, issues of sexual orientation and gender identity have a more public face and some hope that means more attention. While federal anti-discrimination protections have not been expanded to include sexual orientation and gender identity, despite repeated attempts, states have continued to take on the issue.

In the past year, several states have extended anti-discrimination protections for sexual orientation, gender identity, and/or transgender status. Colorado, for example, has adopted rules to eliminate discrimination on the basis of sexual orientation, including transgender status, in employment as well as other areas. Also, employers may prescribe standards of dress or grooming that serve a reasonable business or institutional purpose, provided that individuals are not required to dress or groom in a manner inconsistent with that individual’s gender identity. Those rules became effective November 30, 2009.

Other laws regarding sexual orientation/gender identity issues passed this year include legislation in California requiring the state Department of Public Health to develop a training program for nurses, nurse assistants and physicians (working in skilled nursing facilities or congregate living health facilities) that focuses on preventing and eliminating discrimination based on sexual orientation and gender identity. Connecticut enacted a law that implemented the guarantee of equal protection under the constitution of the state for same-sex couples and the decision of the Connecticut Supreme Court, Kerrigan v Commissioner of Public Health, ConnSCt, released October 10, 2008. In addition, the law repealed a provision in its sexual orientation law specifying the construction of statute.

Delaware enacted a law prohibiting discrimination based on sexual orientation in areas including employment, public works contracting and public accommodations. Under the law, “sexual orientation” is defined exclusively to mean heterosexuality, homosexuality, or bisexuality. Religious employers are exempt, except where the duties of employment or employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under the Internal Revenue Code. Also in Delaware, Governor Jack Markell issued an executive order extending anti-discrimination safeguards for state employees and applicants for state jobs to all military veterans and to protect against discrimination based on gender identity or expression.

Other states, such as Michigan, have legislation working through the state legislature that would extend state anti-discrimination protections for sexual orientation, gender identity and/or transgender status. H.B. 4192 would amend the state’s civil rights act to provide anti-discrimination protections for sexual orientation, gender identity or expression. State Representative Rebekah Warren, primary sponsor of H.B. 4192, says the bill is not about special rights or special interests but about protecting "citizens and their families from being fired from a job or being denied housing because of who they are or who they love." According to a statement on her website, Warren also sees this as a way of making Michigan more competitive in the global economy. "This policy not only protects Michigan families, but also works to reverse brain drain and attract businesses worldwide without spending a dime. We simply can't afford not to do it."

Monday, December 7, 2009

Millions of laid-off workers lose health coverage as federal COBRA subsidies expire

On December 1, many of the millions of laid-off workers and dependents who received federal subsidies to help pay for health care coverage lost those subsidies and likely joined the ranks of the uninsured, according to the consumer health organization Families USA. The subsidies -- which were started last March by the American Recovery and Reinvestment Act (ARRA) but were made available for only nine months -- have enabled millions of laid-off workers and dependents to afford so-called "COBRA" premiums needed to continue health coverage from their previous employer.

Under the ARRA, the federal subsidies pay 65 percent of the cost of COBRA premiums. Nationwide, the federal subsidies for COBRA family coverage average $722 per month. Without subsidies, the report finds, nationwide COBRA premiums for family health coverage will cost laid-off workers, on average, $1,111 per month -- 83.4 percent of the average ($1,333) monthly Unemployment Insurance (UI) checks they receive. For the first recipients, who began receiving subsidies in March, the subsidies will expire on November 30. For those who started receiving subsidies after March, the expiration will be nine months after their start-up date.

"When workers lose their jobs, they often lose their health coverage as well," said Ron Pollack, executive director of families USA. "For millions of laid-off workers and their families, the federal COBRA subsidies have been a health-coverage lifeline. It is essential, therefore, that new jobs legislation extends those subsidies."

Pollack noted that pending health reform legislation would provide a permanent source of help to laid-off workers. The health reform bills pending in Congress would enable laid-off workers and their families to obtain health coverage through a newly created marketplace, called an "exchange," and families with low incomes would receive tax-credit subsidies to help pay the premiums.

According to the Families USA report, average monthly family COBRA premiums vary quite significantly from one state to another --ranging from $979 in Idaho and $989 in Iowa to $1,232 in Minnesota.

The report also indicates that average monthly UI checks vary substantially from one state to another. The two states with the lowest average UI benefits are Mississippi ($839) and Alabama ($903), and the two states with highest benefits are Washington ($1,826) and Hawaii ($1,808).

In nine states, the average family COBRA premium exceeds the average UI benefit. In Mississippi, for example, the average monthly unsubsidized family COBRA premium is 22.4 percent higher than the average monthly UI check: The average family COBRA premium in the state is $1,027, while the average monthly UI check is $839.

The eight other states in which the average family COBRA premium exceeds the average UI check are: Alabama ($1,005 vs. $903); Alaska ($1,209 vs. $1,032); Arizona ($1,111 vs. $941); Delaware ($1,209 vs. $1,125); Florida ($1,147 vs. $1,010); Louisiana ($1,013 vs. $968); South Carolina ($1,090 vs. $1,061); and Tennessee ($1,112 vs. $975).

"Extending the federal COBRA subsidy is a critical, immediate measure to protect recently laid-off workers and their families," said Pollack. "For the future peace of mind of working families, however, it is important to pass health care reform so that nobody has health coverage taken away when he or she switches jobs."

Any extension of the COBRA subsidy program will also likely make the subsidies available to newly unemployed individuals. Under the current program, people who lose their jobs after December 31, 2009, will not qualify for the subsidy.

The Congressional Budget Office and Joint Tax Committee estimated that approximately 7 million adults and dependent children would receive the COBRA subsidy in 2009. The Treasury Department is compiling data about how many workers received the subsidy, but a count of the people benefiting from the subsidy is not yet available.

Friday, December 4, 2009

That was the week that was (in employment news)

While the jury is still out on whether we can finally see a light at the end of the jobs-creation tunnel, some of the employment news out this past week wasn’t all bad, for a nice change of pace (how’s that for damning with faint praise?).

Impact of stimulus. The week began with the Congressional Budget Office’s stimulus report card, “Estimated Impact of the American Recovery and Reinvestment Act (ARRA) on Employment and Economic Output as of September 2009.” The CBO reported that between 600,000 and 1.6 million people were employed in the third quarter of 2009 who otherwise would not have been. While this number is in line with original government estimates, an important point to keep in mind is that only $100 billion of the $787 billion stimulus package has actually been spent by the federal government so far. And, the CBO noted, another $90 billion of stimulus will be coming in the form of tax reductions.

"Estimating the law's overall effects on employment requires a more comprehensive analysis than the recipients' reports provide," the CBO said. "Therefore, looking at the actual amounts spent so far (where identifiable) and estimates of the other effects of ARRA on spending and revenues, CBO has estimated the law's impact on employment and economic output using evidence about how previous similar policies have affected the economy and various mathematical models that represent the workings of the economy. On that basis, CBO estimates that in the third quarter of calendar year 2009, an additional 600,000 to 1.6 million people were employed in the United States."

Jobs summit initiative. Next up was Thursday’s jobs summit at the White House, where more than 100 CEOs, academics, small business and union leaders and local officials participated in a half-day brainstorming session with administration officials. President Obama, who indicated that some of the ideas generated could be put to work almost immediately, while others will become part of legislation for Congress to consider, emphasized the need to quickly move forward “on an aggressive agenda for energy efficiency and weatherization." Other suggestions to come from the session included tax incentives for job creation, improving the credit markets, and the use of community colleges as employee training centers.

In light of the fact that jobs creation will certainly be the key issue in 2010’s midterm Congressional elections, President Obama today continued the theme as he launched a month-long “White House to Main Street” tour in Allentown, Pennsylvania, to be followed by next Tuesday’s invitation-only speech at the Brookings Institution.

Jobless rate: good news/bad news. Tentative feelings of relief greeted today’s announcement by the Labor Department that the unemployment rate fell to 10 percent from a 26-1/2 year high of 10.2 percent in October, as nonfarm employers cut “only” 11,000 jobs. In addition, the government revised job losses for September and October, which showed that 159,000 fewer jobs were lost than previously reported. November's data was the strongest since December 2007, when jobs increased by 120,000.

Reuters reported that improvement in the labor market last month was broad based, with four sectors, including the government, adding jobs. Manufacturing payrolls fell 41,000 after dropping 51,000 in October. The construction sector shed 27,000 jobs, while the service-providing sector added 58,000 workers. Professional and business services added 86,000, while education and health services increased payrolls by 40,000. Temporary help employment rose by 52,400.

Although government data strongly suggested that the labor market may be close to turning the corner, not everyone was immediately willing to don their rose-colored glasses. As Economic Policy Institute (EPI) Director Larry Mishel noted in Tula Connell’s AFL-CIO Now Blog, he would not interpret this decline as the beginning of an ongoing reversal in the unemployment rate. In fact, he said, the jobs situation likely will worsen for up to the next 12 months. One reason: “There is a backlog of people who dropped out of labor force who will come back in—up to 3 million jobless workers. And when they start looking for jobs again unemployment will rise.”

EPI economist Heidi Shierholz acknowledged that layoffs are still high but have gone way down from where they were. “The hiring of temporary workers has increased for the past three months, which is an indicator that employers are testing the waters to increase staff. But hours need to rise before a recovery for jobless workers is really in sight—and so far, the number of hours worked remains flat, hovering at 33 hours per week since summer—the shortest on modern record,” she said.

So, are we really starting to see some improvement on Main Street? Sure, the economic experts and pundits all have their opinions—but one thing’s for certain: it’s way past time for both the government and private sectors to come up with solutions for putting people back to work in decent-paying jobs. And it isn’t just an election that’s hanging in the balance.

Wednesday, December 2, 2009

Made by union members, funded by union dollars

In the current economic crisis, labor unions are looking for any possible way to shield their members from the worst that the downturn has to offer. In what has to be one of the more imaginative solutions to this near-universal problem, the AFL-CIO is thinking about financing the building of a skyscraper, one that its members will be hired to build.

In 2007, Chicago developers broke ground on a twisty skyscraper, the Spire, designed by the renowned architect Santiago Calatrava. At 2000 feet, it would not only be the largest building in the City of Big Shoulders, it would also be one the largest in the world. Open only for residences, the least expensive of which would cost a cool $750,000, the project was a symbol of an earlier, more economically optimistic time. However, since the groundbreaking, the global economic crisis has drained funds and there's been no work on the site for over a year.

Where passing cars see a large hole, the AFL-CIO saw an opportunity. "We're trying to get monies invested to get the project going, to get the spire project going," said Thomas Villanova, head of the local Building and Construction Trades Council in a recent interview with Chicago Public Radio. According to Villanova, under the proposed deal, union members would do all the work on the Spire. How much work would that amount to? Try seven-and-a-half million work hours.

It makes sense for the union. Villanova said that some locals have up to 30 percent unemployment. Members are losing their benefits, their homes, their families, because of the prolonged slump in housing construction. That grim reality makes the reported $170 million dollar investment a potentially wise move. Villanova predicts that the Spire is going to require five years of construction, resulting in the creation of thousands of jobs.

Garrett Kelleher and his firm, Shelbourne Development Group Inc., the developer for the top-bracket residential tower met recently with union leaders as talks. He hopes to borrow $170 million from AFL-CIO pension investment trusts. While the sides failed to reach an agreement in their most recent meeting, talks will continue.

Kelleher and Spire representatives have been visiting local union halls over the past few weeks in an attempt to convince union leaders to invest in the building, according to the Chicago Tribune. (http://www.chicagotribune.com/business/chi-mon-spire-1130-nov30,0,1953419.story.)

It remains to be seen whether the developer's financial troubles will prevent the deal, but if it goes through, it would provide a much-welcome boon to the union's beleaguered members.