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.

NLRB issues significant decision on bargaining obligations

In Alan Ritchey, Inc., 359 NLRB No. 40 (December 14, 2012) (free download from the NLRB site) the Board has issued a significant decision expanding an employer's obligation to bargain over the imposition of discretionary discipline before imposing discipline on a bargaining unit employee. This obligation is met in the situation where a collective bargaining agreement which has a grievance and arbitration procedure in effect. The significance of this decision is the effect it will have on the period between a union becoming the bargaining representative, but before the union and employer have agreed to a first contract containing a grievance and arbitration mechanism.

Discretionary discipline which has "a material, substantial, and significant impact on the employees’ terms and conditions of employment" may not be imposed without first providing the union with notice and the opportunity to bargain in good faith. Money quote:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material, substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 (2004) (emphasis added). This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today. Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed. Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system. Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment— may properly be deferred until after they are imposed.

This is a big deal. The case conveys upon represented employees a palpable benefit of unionization even before a contract can be negotiated. Employees immediately receive the benefit of brakes being provided to a suspension or termination of employment. An employer's existing policy, which is subject to employer's discretion, may not be continued unilaterally once the union achieves representative status.

NLRB makes barring off duty employee access to company property exceedingly difficult

The NLRB has issued an interesting decision concerning an employer's ability to limit employee access to employer's facility when the employee is off duty. In Marriott International, 359 NLRB No. 8 (free download at the NLRB web site). The Board's opinion does a good job of explaining the Board's current position on access and use rules. Essentially it appears any rule which does not affirmatively and extensively advise employees of their right to engage in Section 7 activity in the otherwise restricted area of the facility either chills employee rights or intimidates employees from engaging in such rights at all. Also, any discretion reserved to management to permit off duty employees to return for company business invalidates the rule by virtue of creating an exception, subject to managment discretion.

Because the Board defines these infringements by reference to its imaginary "objective employee's" perception of the effect of the rule, the Board can freely find a violation. A rule that does not expressly, accurately and completely advise employees of their rights will be found to chill those rights even where it has never been enforced against an employee in violation of Section 7. Employers limiting access have a daunting task to craft rules which the Board would find acceptable.

Because Section 7 affords rights to all employees, not only those in a unionized employment environments, all employers should seek advice concerning any rules denying employee access to company property.

Michigan repercussions

Looks like Michigan's right to work push is ripe for push back. Gov. Snyder's popularity has plummeted since the right to work legislation was fast tracked. The polling numbers also indicate right to work is overwhelmingly unpopular in the state.

Employers dropping employee health coverage?

Despite all the uproar and anecdotal evidence of employers reacting to the Affordable Care Act by eliminating health insurance coverage for employees, a recent study suggests otherwise.

Michigan and politics

More on the politics of the surprising Michigan right to work campaign from Political Wire.

Right to work in Michigan

Right to work legislation passes Michigan's Republican controlled state legislature. If, as expected Michigan's republican governor signs the bill, Michigan will become the nation's 24th right to work state. This move definitely disadvantages unions by allowing workers to refuse to belong and pay dues to a union, despite the fact the union is obligated to represent those workers. While the current battle advantages opponents of labor (and not all employers fall into that group), it may give serious impetus to reforms advantageous to labor. Big labor should seriously reconsider the existing compulsory union model in favor of federal legislative reform permitting micro unions and voluntary unionism. Micro unions would permit small groups of employees to unionize, irrespective of the desires of a majority of employees in the entire enterprise. Voluntary unionism would permit dissenters to opt out of not only obligations to fund a union, but also representation by the union. Those dissenters would be free to bargain directly with their employer.

November jobs report brings more good news

The November jobs report released today by the Bureau of Labor Statistics (BLS) indicates the economy added 146,000 jobs. Unemployment dropped to 7.7%.

Michigan and right to work

Will Michigan become the nation's 24th right to work state? Maybe so.

Who took the big hit?

It does not take a study to prove the overwhelming brunt of the losses from the 2007-2010 "Great Recession" affected the middle class more profoundly than the wealthy or, for that matter the poor. But here is one that does. Simple take aways:

1. Middle class wealth has "collapsed" to a 40 year low.
2. Wealth is more concentrated in this country than income, because many people expend all of their income on living expenses, but those fortunate enough to have "a bit extra" benefit from  government policy favoring investment income over earned income.
3. The major asset for the middle 60% of households  is the family home, which constitutes 2/3rds of the wealth of that group of Americans.
4. For the top 1%, the family home represents less than 10%, and for the next 19%, about 30% of their wealth.
5. Debt, a lot of debt exacerbated the problem.

Respect, find out what it means to ee's

This guy nails it. All employees want self respect, and a good boss/leader knows how to give it and knows how *not* to take it away.

Which professions entice psychopaths?

Well, lawyers are right up there at number 2, just after CEO's and eight spots above chefs.

Immigration reform?

The Republican party seems to have awakened to addressing a reality based immigration policy. It took the crushing reality of an electorate increasingly unfavorable to hard line positions on immigration, but moderation on the issue now seems positively to warn the hearts of reasonable Republicans. Many economists have suggested immigration reform is good for the economy, if not necessary to ensure labor is available to fill the positions which will be created in the 21st century.

Election day

In representation elections an employer cannot poll the voters. Its an unfair labor practice. Every now and then the employer's attorney gets fooled and everyone is surprised at the loss the union puts on the employer. I've never had this type of embarrassment in a representation proceeding. Knock on wood.

Did union fight cost Romney?

Did Republican governors in picking a fight with unions in Ohio and Wisconsin cost Romney the election? The unions think so.

171,000 jobs gain beats expectations

The Bureau of Labor Statistics final jobs report of the 2012 election cycle is BTE. The 171,000 jobs created exceeds the ADP estimate released earlier in the week. The unemployment rate ticked up to 7.9% because more workers rejoined the ranks of job seekers. This is the 33rd consecutive month the economy has added jobs. In addition to the October jobs growth, the BLS raised the previously released numbers for August (+142,000 to +192,000) and September (+114,000 to +148,000)

Jobs report = growth 158k

The October jobs report, set for Friday release by the Bureau of Labor Statistics may be the most anticipated significant event remaining in the 2012 presidential campaign. ADP's private sector payroll report released today notes the private sector added 158,000 jobs during the month. Over half of the jobs creation was by large businesses having more than 1000 employees. The BLS report, which will include information on public and private sector jobs, has during the great recession, reflected a bit smaller jobs growth due to the inclusion of the public sector information. Interesting also it appears ADP has changed its methodology in advance of this latest report. That fact is certain to inspire partisan wrangling over the report's results.

Equal Pay a myth?

According to one labor economist, women in every state make a fraction of what males do. There are many causes but the bottom line remains the same. Utah (55¢/$1) tops the list for greatest disparity, followed by Wyoming (56¢/$1) and Louisiana (59¢/$1). State chart here. GOP senator Marco Rubio dismisses the Lilly Ledbetter Act as benefiting only trial lawyers. Now there are often explanations for pay disparity, and under the Equal Pay Act an employer need only prove there is a factor other than sex causing the disparity. Note, it is the employer's burden to do so once the claimant establishes a pay differential in circumstances where a female performs a job requiring the same skill, effort and responsibility, yet is paid less than males.

Union fines

Just finished discussing a labor organization's right to fine members with my labor law class. This link makes the points pretty effectively. A Union has the right to dictate certain conduct to a members, and members who fail to perform risk fines levied by the union. It also shows equally effectively that political trackers will say and do pretty much what has to be done to get the dirt.

October jobs report

Have the jobs statistics crossed the Rubicon? Or is it just a conspiracy to help President Obama's reelection? The statistics are compiled by the Bureau of Labor Statistics (BLS) which released its monthly report today. Unemployment dropped to 7.8% the lowest level since 2008. Although the job growth was modest (114,000) the numbers for prior months were also raised evidencing an incrementally improving jobs picture. Many on the right now claim the the BLS stats are cooked. And according to candidate Romney so is Big Bird.

NLRB decides first Facebook case

The NLRB has concluded that the firing of a car salesman occurred because he posted to Facebook photos about a dangerous accident which occurred at another dealership owned by his employer. The accident involved a Land Rover driven over a wall and into a pond after a test drive. The same day the salesman posted the accident photos he posted sarcastic comments about a "cheap" party given by his employer at a sales event announcing new BMW models. The latter photos were arguably protected concerted activity "because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions."

The NLRB affirmed the ALJ's conclusion that the Land Rover incident was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

While the discharge was upheld, the employer's rule requiring "courtesy" in employee to employee communications was overly broad, leading to a finding of a violation and an order requiring the employer to remove the rule from its handbook.

Value of labor's experience and training

This post makes an especially poignant argument for training, experience and correlates both to hard work. Its got a pro-labor slant, but remove the politics and it makes a good case for not cutting corners when it comes to training and experience, whether the worker is a janitor or an NFL referee. The example of the NFL referees is the best argument favoring the labor theory of value to come around in a long time.

Cause/effect?

The lockout of the NFL referees has ended with the referees expected to be on the field tonight in Baltimore for the Ravens game with the Cleveland Browns. Not sure the NFL could take many more game ending calls like Monday's Green Bay-Seattle debacle.

That wern't no touchdown, scab!

Wisconsin Governor Scott Walker has now sided with labor against management in one specific context. After a bizarre ending to last night's Packers-Seahawks game and Seattle benefitting from a controversial call, Gov. Walker now wants the locked out union referees back.