Colorado Governor John Hickenlooper recently signed the Job Protection and Civil Rights Enforcement Act of 2013. The anti-discrimination act will allow the additional remedies of compensatory and punitive damages in employment discrimination cases brought under state law against employers where intentional discrimination is proven. These damages would be in addition to the remedies allowed under current law.
“As a former small business owner, I know full well that discrimination in the workplace is the rare exception and not the rule in Colorado,” Hickenlooper commented after signing the act on May 6. While sympathetic to the business community’s concerns of “red tape, needless bureaucracy and frivolous or harassing litigation,” the governor stated that his administration believed that “HB13-1136 has been crafted with safeguards against frivolous lawsuits and excessive damage claims. Moreover, we believe HB13-1136 rightly embraces employment discrimination remedies for companies with fewer than 15 employees that are recognized in most other states.”
“Colorado law already prohibits small business employers from engaging in unfair employment or discriminatory practices, but employees who are victimized by these practices can seek only job reinstatement and back pay for their claims,” he continued. “HB13-1136 expands available remedies for workers to recover compensatory and punitive damages from employers who have intentionally engaged in discriminatory practices. The damage awards are limited to $10,000 for employers with one-four employees, and $25,000 for employers with five-fourteen employees.”
“Among the provisions in HB13-1136 that provide safeguards for small businesses: (1) workers must establish intentional discrimination by the employer; (2) a plaintiff worker must exhaust all administrative remedies before going to court; (3) there is a mandatory process of mediation before going to court; (4) only courts and not administrative law judges are empowered to award damages to plaintiffs; (5) courts may award costs and attorney fees to defendant employers for frivolous claims; and (6) courts must consider the size and assets of defendant employers before awarding damages.”
The effective date for the Job Protection and Civil Rights Enforcement Act of 2013 has been delayed until January 2015 in order to allow for an outreach and public education campaign.
In the latest in a growing body of case law regarding teachers who are disciplined after taking to cyberspace to air their workaday grievances, a New York appeals court concluded that termination was too harsh a punishment for a teacher who posted on Facebook that she “hated” her students and that they were the “devil’s spawn.” The case was noteworthy in and of itself; it generated considerable attention in the press. But it’s also of interest for the court’s lenient take on employees’ social media slip-ups—and ensuing efforts to cover them up.
“Devil’s spawn.” Just one day after a student from another public school drowned at the beach during a field trip, the teacher posted a comment on her Facebook page: “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!” One of her Facebook friends, a school colleague, contacted the assistant principal, noting concerns about the propriety of the postings, and a school district investigation was launched.
When the teacher received the resulting discharge recommendation, she claimed she hadn’t written the offending comments—that a friend with access to her Facebook account had posted them. The investigator then interviewed the friend, who first stated that she was the author, but after being warned that she could be incarcerated for perjury, admitted that the teacher had asked her to take responsibility so she would not lose her job.
Discharge unwarranted. The appeals court unanimously affirmed a lower court’s order setting aside her discharge. The court cited the teacher’s otherwise unblemished record in her 15-year career, and her show of remorse, in holding that the case had properly been remanded to the New York City Department of Education to impose a lesser penalty. Although the posting was “clearly inappropriate,” the teacher was merely venting her frustration after a hard day in the classroom, the court said, noting too that she deleted the post just three days later. Moreover, the comments were directed to her online friends only, and her students (or their parents) were not among them. Therefore, the comments were not published to them or to the public at large, the court reasoned.
On this point, the appeals court seemingly endorsed the view of the lower court. “[W]ith Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend,” Justice Barbara Jaffe wrote below. “Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable.”
The “just venting” defense. It’s a novel contribution to social media jurisprudence—the court’s holding that the teacher’s Facebook comments were not cause for discharge because she was merely venting frustration. After all, it’s difficult to conceive of an offensive Facebook comment that wouldn’t fall under the “just venting” defense. The ruling bodes well for employees: Under this standard, employers would be hard-pressed to terminate employees for any ill-advised work-related social media commentary.
Also worth noting is the presumption that employees have a reasonable expectation that their postings are for Facebook friends’ eyes only. This notion runs counter to the increasingly common conception that what’s posted on Facebook is public domain. And the court’s suggestion that the teacher mitigated her conduct by deleting the post days later ignores the fact that, practically speaking, Facebook postings are forever.
The fear factor. The fact that the teacher eventually admitted to making the comments after initially denying them also held sway. Significantly, the court below reasoned—and the appellate court affirmed—that the employee only misled investigators into thinking that her friend had posted the Facebook comments “out of fear of losing her livelihood, rather than as part of a premeditated plan.”
We don’t know from the facts provided the extent of premeditation involved in hatching the scheme by which her friend would take the fall for her. Or what, in the court’s view, would constitute a “plan.” But the rationale—that dishonesty is no cause for discharge if undertaken to save one’s job—could spell trouble for employers, and confound those who are charged with conducting workplace investigations on their behalf.
By Sheryl C. Allenson, J.D. and Lisa Milam-Perez, J.D.
In yet another blow to the authority of the embattled NLRB, a divided Third Circuit ruled the recess appointment of former NLRB member Craig Becker was invalid; thus, a three-member panel comprised in part of Becker was improperly constituted when it denied reconsideration of a Board order finding the employer unlawfully refused to bargain with a newly elected union (NLRB v New Vista Nursing and Rehabilitation, May 16, 2013, Smith, D). The appeals court rejected the contention that the definition of recess is a nonjusticiable political question. Ruling that recess appointments could only be made during an intersession recess, the majority found the current practice permitting intrasession appointments unconstitutional, noting that it was “contrary to the structural framework set out in the Constitution.”
Union seeks certification. In the underlying case, a healthcare union petitioned the NLRB for certification as the representative of New Vista Nursing and Rehabilitation’s licensed practical nurses. Arguing that the LPNs were supervisors, the employer opposed the certification, but the Board’s regional director certified the union and ordered an election. New Vista appealed to the Board, which affirmed the regional director’s decision. After the union won a majority in the election, the employer refused to bargain and the union filed an ULP charge. In an order dated August 26, 2011, the Board granted summary judgment in favor of the union and against the employer. That order was issued by a three-member “delegee group” of the Board, including member Craig Becker, a recess appointee.
Thereafter, New Vista filed a series of motions for reconsideration with the Board. In one instance, the employer argued that the Board acted ultra vires, suggesting that the summary judgment decision was actually issued after member Wilma Liebman resigned—meaning the Board had only two panel members when it issued its decision. Rejecting this position, the Third Circuit noted that the decision was dated before Liebman resigned and that the employer did not rebut the presumption of regularity in the Board’s conduct.
Without addressing the recess appointments issue raised by the employer, the Board denied a second motion for reconsideration. In response, the employer filed yet another motion for reconsideration, this time arguing that the three-member delegee group that issued the most recent ruling lacked three members because two were invalidly appointed while the Senate was not in recess. After it denied the motion, the Board filed an administrative record with the appeals court, where the agency had previously filed an application for enforcement. The employer filed a petition for review of the second and third reconsideration orders, which was consolidated with its petition for review for all purposes.
Jurisdictional requirement. Considering sua sponte whether the NLRB panel that issued the August 26 order had jurisdiction, the appellate majority held the three-member composition requirement is jurisdictional—and that the jurisdictional requirement applies with equal force to administrative agencies as to Article III courts.
In its extended analysis of jurisdiction, the Third Circuit drew on the Supreme Court’s decision in New Process Steel for guidance. According to the appeals court, that decision “renders the three-member composition requirement a ‘threshold limitation’ on the scope of the power delegated to the Board by the NLRA: the Board cannot exercise its power through a delegee group if that group has fewer than three members.” Under New Process Steel, the three-member requirement speaks directly to the Board’s power to hear a case; in other words, its jurisdictional power, the appeals court explained. Thus, before it can exercise its power over a case, the Board must meet the three-member composition requirement. Accordingly, the appeals court scrutinized not whether Members Richard Griffin and Sharon Block were validly appointed when they participated in later challenged decisions (the issue that the parties had briefed), but whether Becker was properly appointed—given that he was the only member of the delegee group that issued the August 26 order who was recess-appointed. It held he was not.
“Recess of the Senate.” Turning to the question of whether there are judicially manageable standards to define the term “the recess of the Senate,” the appeals court noted that there was a range of standards advanced and that only the Board’s standard might be unmanageable. Under the Board’s standard, recess appointments could occur “any time the Senate is not in session.” This definition does not rely on any particular Senate procedure and would require judicial “explor[ation] [of] communications between the Senate Minority and the president.”
In deciding that there were judicially manageable standards, the court refused to bite on the amicus’ bait suggesting that it adopt such standards for partisan reasons. Differentiating between a decision that has political overtones and one that invokes political questions, the appeals court explained that, in this instance, it was defining the term “the Recess of the Senate” because it was a justiciable question.
Member Becker was appointed during an intrasession break that lasted 17 days. During that time, the Senate was indisputably not open for business. Thus, the validity of his appointment hung on whether the Recess Appointment Clause empowers presidents to make appointments during these intrasession breaks.
Definitions. The Third Circuit explained at length the history behind recess appointments, and described the three meanings of “the Recess of the Senate.” Intersession breaks, which the appeals court found operative, are between an adjournment sine die and the start of the next session. The second is intersession and intrasession breaks that last a non-negligible period, historically 10 days. The third is the definition advanced by the Board: any time the Senate is “not open for business” and thus unavailable to provide advice and consent on nominations. Interpreting the phrase “the Recess of the Senate,” the appeals court found that the Board’s position was implausible, noting that the under the Board definition recess appointments could occur “whenever [Senators] leave for the weekend, go home for the evening, or even take a break for lunch..”
To determine what the phrase does mean, the appeals court turned to the Recess Appointments Clause itself and noted that it contained some temporal guidelines which suggest that “recess” meant intersession breaks only. Citing the text of the clause, the appeals court explained that recess-appointed officers’ terms “shall expire at the End of [the Senate’s] next Session,” implying that their appointments were made during a period between sessions. If, on the other hand, recess were to include intrasession breaks, the recess appointment term would be expected to last only until the end of “that” term, the court suggested. Finding support in the nuances of the word “next,” the appeals court concluded that the term “recess” could only contemplate an intersession break.
Recent practice aside, the Third Circuit found no support in the Constitution for the second definition of “the Recess of the Senate.” Rather, that practice, appearing with recent frequency beginning with President Ronald Regan, was incompatible with the Constitution, the appeals court found. “This means the current practice is contrary to the structural framework set out in the Constitution and must be held unconstitutional.” Thus, only intersession breaks constitute “the Recess of the Senate,” the Third Circuit held.
Invalid appointment. Because he was appointed during the March 2010 intrasession break, Member Becker was invalidly appointed, the Third Circuit ruled. The delegee group had fewer than three members when it issued its August 26 order and, therefore, acted without power and lacked jurisdiction when it did so. The majority vacated the Board‘s orders without addressing whether the substantive decision was correct—or whether the delegee groups that issued subsequent reconsideration orders (which included Griffin and Block) were properly composed.
Dissent. Judge Greenaway dissented, arguing that the majority’s reasoning “undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years.” He would hold that “the Recess” refers to both intrasession and intersession recesses because the Senate can be unavailable to provide advice and consent during both. Consequently, Greenaway would hold that Member Becker (as well as Members Block, Flynn, and Griffin) were all appointed under a valid exercise of the executive power granted to the president by the Recess Appointments Clause.
“The inclusion of intrasession recesses in the ambit of the Recess Appointments Clause is the interpretation most faithful to the text of the Constitution, the intent of the Framers, the purpose of recess appointments, and the tradition and practice of both the President and the Senate.”
Ruling’s impact. While the D.C. Circuit’s Noel Canning decision held the NLRB lacked a quorum since January 2012, the Third Circuit today found the Board has been without a valid quorum since as far back as August 2011—with the departure of former Board Chair Wilma Liebman—thus calling into question even more agency rulings. As the anti-union National Right to Work Legal Defense Foundation noted, more than 1,500 NLRB decisions may be invalidated as a result of the Third Circuit’s holding.
Specifically, today’s ruling “puts into question most decisions still remaining in the circuit court in which Craig Becker (a March 2010 recess appointee) was a panel member,” noted Jeffrey M. Hirsch, an associate professor at the University of North Carolina School of Law (and contributor to the popular Workplace Prof blog). “The court held that any three-member panel that included Becker was invalid. So any case with Becker, except for the bigger ones that included more than three Board members, would be vacated under this decision. It would kill all decisions with Becker from August 28, 2011, to January 3, 2012, and all three-member decisions with Becker the rest of the time. For cases that were pending before Noel Canning in another court, if I were counsel for an employer, I would wave this argument around.”
“The bigger, near-term issue is, now there is another circuit court that will not uphold any decisions with Members Block or Griffin,” Hirsch said. “Practically speaking, this isn’t that big of a deal because any employer (or union) could bring any Board case to the D.C. Circuit, but for employers with cases before the Third Circuit, they can pursue that avenue of appeal as well.”
Another outcome of today’s decision: “It already knocks the NLRB’s morale a bit lower,” said Hirsch, a former appellate attorney for the agency.
Coincidentally, the ruling was handed down the same day that the Senate HELP Committee was holding a hearing on the full package of current NLRB nominees (including Griffin and Block, who had been prodded by Republicans to resign following Noel Canning). It’s not clear what impact, if any, today’s decision will have on the HELP committee vote, scheduled for next week.
“I don’t think the Block and Griffin nominations were going anywhere anyway,” Hirsch told Employment Law Daily. “This ruling even decreases that chance, no matter their individual qualifications. When the White House nominated the two Republican nominees [Harry I. Johnson and Philip Andrew Miscimarra], I had a slight sliver of hope that there was a deal in the works. But I have no idea whether that’s true or not.”
Similarly, that the Supreme Court will take up Noel Canning is widely considered a certainty, so it’s not clear that New Vista will affect the High Court’s decision whether to grant cert. “The issue is a pretty big one,” Hirsch notes, adding that with today’s decision, “the highly probable grant of cert has gotten even higher.”
Hirsch, for one, is curious to see how the Supreme Court will rule on the issue. “These courts are flipping 150 years of practice,” he observed. “It’s really kind of startling.”
FY 2014 budget proposal documents provide details on impending OFCCP actions and recent past progress
In his budget proposal for fiscal year (FY) 2014, President Obama is proposing $108,467,000 for the OFCCP which includes 753 full-time equivalent (FTE) employees. That amount represents a $3,280,000 increase from the FY 2012 Enacted Level of $105,187,000. On April 10, 2013, Acting Secretary of Labor Seth D. Harris released the documentation in support of the Labor Department’s FY 2014 budget request. Among this documentation is the OFCCP’s FY 2014 Congressional Budget Justification which provides some insights into current OFCCP enforcement initiatives and future plans.
FY 2012 enforcement overview. The OFCCP modified its performance measures and workload production goals in FY 2012 to increase the number of comprehensive and thorough audits, the budget justification explains. As a result of these efforts, and with improved training, updated procedures, and amended regulations, the OFCCP was on target in completing its anticipated number of compliance evaluations in FY 2012 and made significant improvements in the quality of its investigations, in identifying and investigating compensation discrimination, and in engaging in strategic outreach events to develop effective relationships with community-based organizations. The agency also achieved record results in the rate of compliance evaluations with recruitment violations for covered veterans and workers with disabilities.
Enforcement statistics. In FY 2012, the OFCCP completed 4,007 compliance evaluations resulting in over $11 million in back pay to over 30,000 workers, and created nearly 3,500 job opportunities. Of the 4,007 total compliance evaluations, 3,580 were supply and service contractor evaluations (including 80 Functional Affirmative Action Plan (FAAP) evaluations), and 400 were construction contractor evaluations.
The OFCCP’s target for FY 2013 is 4,400 total compliance evaluations with 4,000 of those as supply and service evaluations (including 100 FAAP evaluations) and 400 construction evaluations. For FY 2014, the OFCCP plans to complete 4,650 compliance evaluations, including 4,200 supply and service evaluations (with 100 FAAP evaluations) and 450 construction evaluations.
Compliance manual revisions. The contractor community is still awaiting the public release of the long-promised revisions to the OFCCP’s Federal Contract Compliance Manual (FCCM). OFCCP Director Patricia Shiu had previously announced that a revised FCCM would be issued by the fall of 2011, and last fall the agency indicated that the revised FCCM would be released by the end of the 2012 calendar year. The agency’s budget justification now states that the revised FCCM will be completed in FY 2013. However, at least one OFCCP expert has reported that the revised FCCM was completed in December 2011 and that OFCCP compliance officers are implementing the revised manual in the field now. According to the FY 2014 budget justification, the revised FCCM “will support a more robust and thorough compliance evaluation process, as well as create a level of consistency across regions.”
New IT system. Continued funding of the OFCCP’s new IT system will enable data sharing across entities and scalability, neither of which is available with the agency’s current, antiquated system, the OFCCP maintains in the budget justification. The Federal Contractor Compliance System (FCCS) will modernize the OFCCP’s ability to perform its mission by employing state of the art cloud technology to track statistical data collected through the compliance evaluation process. In FY 2011, the OFCCP awarded a contract for the development of the FCCS and the agency anticipates the first deployment of the system will begin in FY 2013. The OFCCP estimates that over a ten year period the FCCS will cost approximately $23 million and result in approximately $39 million in benefits as compared to the current IT system. The OFCCP anticipates that implementation of this cloud-based system in FY 2014 will enable the agency to improve process standardization, reporting functionality, and overall productivity of employees, which will realize savings beginning in FY 2015 and 2016 in the amount of $39,000,000 over a period of 7 years.
Moreover, the FCCS will be designed to automate the Affirmative Action Program (AAP) process by enabling the OFCCP to electronically collect and analyze data submitted directly by the federal contractor community in a much more timely and efficient manner. The agency envisions that AAP data will be collected via a secure web portal that will be accessible to the federal contractor community.
In FY 2013, the OFCCP also plans to deploy a cloud-based technology that will allow stakeholders to find the information they need by using new self-service options that enable them to check the status of an existing inquiry and search a sophisticated knowledge-based system to find answers to their questions.
Pending regulatory proposals on veterans and workers with disabilities. The budget justification indicates that the OFCCP’s pending proposed regulatory revisions regarding workers with disabilities (76 FR 77056-77105) and protected veterans (76 FR 23358-23425) will be finalized sometime in FY 2013. To date, however, the final versions of the regulations have not been submitted to OMB for approval.
Compliance assistance. To assist contractors in complying with their responsibilities, the OFCCP will conduct 650 compliance assistance activities in FY 2014, an 8 percent increase from FY 2013 levels, the budget justification states. The OFCCP will continue to issue enhanced fact sheets and brochures in various languages describing the role of the agency, the laws it enforces, and what companies can do to ensure compliance. Guidance will be provided in the form of guides, webinars and directives.
The question of the validity of the NLRB’s foray into the rulemaking when it issued its notice posting rule ultimately turned on a question of free speech, not the Board’s authority to issue such a regulation. In National Association of Manufacturers v NLRB, the D.C. Circuit vacated a controversial NLRB rule requiring employers to notify employees of their rights under the NLRA, upholding a challenge brought by several employer groups. However, rather than ruling on the NLRB’s authority under NLRA Sec. 6 to promulgate the posting rule, as argued by the parties, the appeals court concluded that the rule violated employers’ free speech rights as protected by Sec. 8(c) of the Act.
Posting rule. The rule declared that it is an unfair labor practice for an employer to fail to post the notice — that is, it “may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Sec. 7.” Two additional enforcement devices contained in the rule included the fact the Board could suspend the running of the six-month limitations period for filing any unfair labor practice charge, and that it could consider an employer’s “knowing and willful refusal to post the notice as evidence of unlawful motive.”
Although the parties devoted large parts of their briefs to the question of whether Sec. 6 gave the Board authority to promulgate its posting rule, the D.C. Circuit focused its analysis on Sec. 8(c), the NLRA’s free speech provision. The appeals court observed that although Sec. 8(c) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both. Under the rule, an employer’s failure to post the required notice constitutes an unfair labor practice. Moreover, the Board may consider an employer’s “knowing and willful” noncompliance to be evidence of antiunion animus in cases in which unlawful motive is an element of an unfair labor practice.
Compelled speech. Plaintiffs here, like those in other compelled-speech cases, objected to the message the government ordered them to publish on their premises. They see the poster as one-sided, as favoring unionization, because it “fails to notify employees, inter alia, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in excess of the amounts required for representational purposes.”
At this juncture, the appeals court posed the question: How can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, Sec. 8(c) necessarily protects — as against the Board — the right of employers (and unions) not to speak. The Board rule violated Sec. 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus in cases involving unlawfully motivated firings or refusals to hire. Consequently, the Board’s posting rule was vacated.
NLRB quorum. Although neither party raised the issue, as an aside, the appeals court also examined whether the NLRB had a valid quorum at the time that the challenged posting rule was promulgated. At the time the rule was proposed, there were four active members of the NLRB. However, because Member Becker was appointed during an intrasession recess of the Senate, his appointment was declared constitutionally invalid. The three remaining members of the Board were confirmed by the Senate, but Chairman Liebman’s term expired on August 27, 2011, prior to the August 30 publishing of the final rule in the Federal Register. Ultimately, the court determined there was no problem here, because Chairman Liebman signed the final rule on August 22, and the rule was filed with the Office of the Federal Register on August 25, before Liebman’s term expired, when the Board still had a constitutionally appointed quorum. Once the rule was filed with the Office of the Federal Register, the Board had taken all the steps necessary to issue the rule.