UAW wins in gaming

In what is reported as the first successful union organization of dealers on the Las Vegas strip, the UAW scored a lopsided victory (233 to 70) organizing the dealers at the Flamingo Las Vegas/Margaritaville casinos.

ADA accommodations do not have to relate to essential job functions

The Fifth Circuit has clarified an important Disabilities Act issue in a case vacating summary judgment against an employee. Feist v. Louisiana, CA No. 12-31065 (9/16/13). The district court held the employee failed to establish a nexus between the requested accommodation and any essential function of her job. In the district court's view that was fatal to her claim she was denied a reasonable accommodation. In vacating and remanding, the Fifth Circuit panel (Davis, Jones, Benavidies) relied upon the statute and DoL regulations to conclude a request for a "free on-site parking space" to accommodate her osteoarthritis of the knee could be a reasonable accommodation because it could make existing facilities readily accessible. The case was remanded to determine whether the request was reasonable.

Employee wins SJ on ADA claim against naive employer

A federal district court in Tennessee has granted summary judgment to an employee on his disability discrimination claim. The case is significant because it illustrates how an employer's naive approach to assessing the issues and its own termination letter can be devastating to the defense of a disability discrimination claim. Lovell v Champion Car Wash, LLC. More after the jump.

ILA leves AFL-CIO

The International Longshore and Warehouse Union (ILA) has announced it is leaving the AFL-CIO. The 40,000+ members of the ILA, the union has been involved in jurisdictional disputes with other unions, and has been very critical of the labor movements support of "Obamacare". More info at LaborNotes.

Fast food workers strike, nationally, locally

While it seems fast food workers may be getting the cart before the horse by striking before they have a bargaining representative, such tactics are certainly protected conduct, it only remains to be seen if it is effective in causing upward adjustments to pay or other terms and conditions of employment. We even have a West Bank event being reported. Collective actions like these, even where there is no "official" union representation can be protected activity under the National Labor Relations Act. Employers should proceed with caution, and the advice of a knowledgeable labor practitioner when responding to strikes or other collective activity by employees.

Aging of U.S. population

There are a lot of issues which affect the workplace. One is the effect of age and longevity. Wonk Wire has a dynamic chart reflecting the aging of the general population since 1900, and projecting out the change through 2060. One takeaway, a 40 year old has a reasonable probability of being around in 2060. Fascinating.

Wearing the right hat

An administrative law judge has ruled an employer's policy prohibiting employees from wearing baseball caps other than the employer's interferes with employees exercise of section 7 rights. Quad Graphics 32-CA-062242. Usually wearing union insignia at work is presumptively a valid exercise of rights protected by the NLRA. An employer in retail and or healthcare settings has a bit more leeway in mandating dress codes. An employer must establish special circumstances to justify infringement of the Section 7 right.

In this case the employer argued 1) safety concerns (keeping hair out of machinery), 2) preventing gang activity and 3) promoting effective customer interaction. Each of the proffered justifications was rejected. The "safety" argument applied equally to the employer's cap as well as similarly styled caps including those with union insignia or other protected expressive content. The "gang activity" rationale failed since there was no evidence of gang activity. The "customer interaction" exception failed because there was no evidence the employees interacted with customers.

Fifth Circuit reverses SJ in employers favor

A Fifth Circuit panel (Davis, Graves and Higginson) in a per curium opinion, EEOC v. DynMcDermott Petroleum Operations Co., No. 12-40424 (July 26, 2013)  has reversed a Texas federal district court's grant of summary judgement to New Orleans based DynMcDermott. The case involved the decision not to rehire a former employee into a position he had previous experience related to performance. Plaintiff's evidence of age and disability discrimination included statements about needing a younger candidate and the plaintiff's wife's cancer. The appeals court parses the evidence and does a good job of explaining the existence of material fact disputes sufficient to compel reversal.

Full House

The Senate has confirmed president Obama's five pending nominations to the National Labor Relations Board. Three Democrats and two Republicans constitute the full five member Board. It is the first time "in a decade" that all five current members of the Board have been confirmed by the Senate.

"But for" standard applies to retaliation claims

The Supreme Court has decided retaliation claims under Title VII require proof of "but for" causation establishing a confusing reality for trial judges and jurors making factual findings in cases involving discrimination claims and retaliation claims. Its confusing enough for attorneys. Now a finding of discrimination must be supported by the conclusion discrimination was a "motivating factor" while a finding of retaliation must be supported by a finding it was the "but for" cause for the adverse action.

Supreme Court narrows vicarious liability for sexual harassment

In a  5-4 opinion, Vance v. Ball State University,  the Supreme court clarified and narrowed employer liability for sexual harassment in the workplace. The Court reduced the class of individuals whose conduct can create vicarious liability for the employer to “supervisors”  empowered by the employer to take tangible employment actions against the victim. All other supervisors are co-worker-employees whose conduct can only create liability by proving the employer was negligent, including it knew or should have known the harassment occurred, but failed to act to prevent or promptly remediate it. This is substantially narrower liability than under the National Labor Relations Act, which expressly defines "supervisors" in broad terms. This also presents an opportunity for employers to create another layer of insulation against unexpected allegations of harassment.

Non-payment on payday is a FLSA violation

The federal ninth circuit has held that late payment of wages to an employee constitutes a minimum wage violation. Rother v. Lupenko, et al., Nos. 11-35922, 11-35953. (April 12, 2013). For purposes of the federal minimum wage requirement, late payment of wages after payday is a failure to comply with the minimum wage requirements of the FLSA. I'm pretty sure this result would be hard to replicate in the Fifth Circuit, and that a reasonable delay in payment would likely be a de minimis violation not subjecting the employer to a finding of a violation under the FLSA.

Are interns employees?

Whether interns are employees subject to the Fair Labor Standards Act was decided in the affirmative by a federal district court in New York. Unpaid internships have proliferated in recent years. In this case the interns worked in the film industry. The inquiry as to whether an intern is an employee for purposes of the FLSA is a fact driven one, but employment status is defined very broadly to include anyome who the employer "suffers or permits to work."

Firing Momma

A recent panel opinion of the Fifth Circuit, EEOC v. Houston Funding II, Ltd, No. 12-20220, reversed summary judgment in an employer's favor where the employer discharged a lactating mother. The holding, on the facts presented, found the EEOC, in representing the plaintiff had met its McDonnell-Douglass burden of presenting a prima facie case that the employer had terminated the plaintiff's employment on account of a pregnancy related condition. Of note, Judge Jones' concurring opinion reminds practitioners there is no duty to accommodate lactating mothers under Title VII. But it does not address the fact that:

[t]he Patient Protection and Affordable Care Act (“Affordable Care Act”) amended section 7 of the Fair Labor Standards Act (“FLSA”) to require employers to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. The break time requirement became effective when the Affordable Care Act was signed into law on March 23, 2010.

http://www.dol.gov/whd/nursingmothers/ 

175,000 Jobs Created in May

The Bureau of Labor Statistics (BLS) has issued its May jobs report. While 175,000 jobs were created the unemployment rate edged up slightly from 7.5% to 7.6%. The drop is largely due to additional participation in the labor force.

Baseball

Its been a while since our last post, between work and coaching a 9-10 baseball team, my time has been pretty eaten up, and nothing has caught my attention that inspired the effort to post. Lafe Solomon's renomination almost got me there as well as a couple of decisions, but not yet. I plan to do better.

Congressional hearing on unemployment poorly attended

A hearing of the Joint Economic Committee recently met to discuss long term unemployment. Only 4 of the 20 committee members attended. No Republican Member attended.

Case filings down nationally, up locally

According to one study analyzing case filings in federal court, Civil Rights filings dipped in January and February and relative to a year ago are smaller in number. But going back to February of 2008 as one chart in the study shows,  there is an annual dip in nationwide filings at the beginning of the new year. However, the short term trend in Louisiana's Eastern District and Mississippi's Southern District reflects higher filings. The EDLA ranked 8th this year, but 28th last year. SDM ranked 10th as compared to 26th last year.

Job growth spurts

The latest jobs report from the Bureau of Labor Statistics reflects strong job growth in February - 236,000, far better than estimates, and a drop in unemployment rate to 7.7%, the lowest point since December of 2008.

How not to argue against raising the minimum wage

One opponent of raising the minimum wage makes a dated argument that is very persuasive in an unintended way.

Job growth continues

The latest Bureau of Labor Statistics jobs report is out. Unemployment creeps up, but job growth steady. Economy adds 157,000 jobs. The change in total nonfarm payroll employment for November was revised from +161,000 to +247,000, and the change for December was revised from +155,000 to +196,000.

Union decline continues in 2012

From the Bureau of Labor Statistics (BLS) annual report on union membership:

"In 2012, the union membership rate--the percent of wage and salary workers who were members of a union--was 11.3 percent, down from 11.8 percent in 2011, the U.S. Bureau of Labor Statistics reported today. The number of wage and salary workers belonging to unions, at 14.4 million, also declined over the year. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent, and there were 17.7 million union workers."

Declining volume of strikes

Anyone needing factual confirmation of the decline of organized labor need only look at the historical trend of strikes affecting more than 1000 workers. The decline since the 1970's is steep. In contrast, the number of employees idled by management lockouts has spiked.

Unholy alliance, pigs flying or both

The AFL-CIO, the SEIU and the U.S. Chamber of Commerce are exploring a joint effort on immigration reform. Enlightened business interests have for years been pushing sane immigration policies. Labor economists predict labor shortages in coming years. One of the effects of the Hispanic participation in the 2012 election is to remove demonizing immigrants from the political debate.

Fortune releases top employer list

Google, Inc. tops Fortune Magazine's list of top one hundred employers.

Modest job growth continues in December

The January jobs report from the Bureau of Labor Statistics indicates 155,000 jobs were created in December. Unemployment rate remained unchanged at 7.8%.

Religion trumps contraception mandate

In a divided opinion the Seventh Circuit has issued an injunction in favor of an employer and its owners against the contraceptive mandate of the Patient Protection and Affordable Care Act (ACA). This case (and the several others raising the same issue) set up an epic showdown between employers (and it seems also owners) claiming religious objections to mandated programs. In this instance the employer/owners objected to  "no cost sharing contraception, sterilization and medical services the Catholic religion teaches are gravely immoral." The employer/owners claimed the imposition violated their First and Fifth Amendment rights as well as the Religious Freedom Restoration Act. In reversing a trial court denial of injunctive relief the divided panel found the employer and its owners had exhibited a likelihood of success necessary for injunctive relief. A split in circuits exists and the issue probably will reach the Supreme Court. On this one, Judge Rovner's dissent makes a lot of sense.