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With Senate signing off on general counsel nominee, NLRB fully functional for first time in a decade

October 30th, 2013  |  Lisa Milam-Perez  |  Add a Comment

By Lisa Milam-Perez, J.D.

The Senate on Tuesday confirmed the nomination of Richard F. Griffin, Jr., to be general counsel of the National Labor Relations Board. When he takes his post, the agency, remarkably, will find itself legitimately staffed by Senate-approved appointments for the first time in more than 10 years.

That this feat was accomplished at all was a marvel amid the current political climate. Senate Majority Leader Harry Reid threatened filibuster rule changes to unplug the stopped-up nomination process, while Republican Lindsey Graham vowed to block every Obama nominee until the President delivered to Congress the survivors of the 2012 Benghazi attack. A motion for cloture was filed in the Senate on October 16. Ultimately, Griffin was approved by a 55-44 party-line vote, with only Alaska Republican Lisa Murkowski breaking ranks in the nominee’s favor.

Agency under fire. President Obama could have opted for a less contentious candidate. Griffin, formerly general counsel to the International Union of Operating Engineers, served as NLRB member under the controversial recess appointments of January 2012, now pending Supreme Court review. His nomination to the Board was withdrawn by the President last summer as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition. Instead, Griffin was tapped for the GC post, which did not please Republicans. Indeed, in September, Republicans on the Senate HELP committee opposed moving Griffin’s nomination as general counsel out of committee and onto the Senate floor. The move was not surprising given that the NLRB had been under relentless fire. The House had passed a bill defunding the agency until the recess appointments issue is resolved. A similar measure was introduced, with weaker prospects, in the Senate. The House also passed a $50 million cut in the NLRB budget—on top of sequestration.

“The NLRB is truly at an unprecedented place in its history; we’re being attacked politically, judicially, and legislatively,” said NLRB Acting General Counsel Lafe Solomon, speaking at a conference last May. “There are some very important decisions being challenged on the basis that the Board was invalid. There are tangential, collateral attacks on us judicially. Some employers are going into the D.C. Circuit court seeking writs of mandamus against us. It’s unprecedented.”

Nay votes and defunding measures notwithstanding, the NLRB now has a full complement of bona fide, Senate-sanctioned appointees: five Board members and a general counsel. What else does this mean for the agency and its constituents?

More of the same? Many management attorneys contend that the NLRB has “gone rogue” in recent years, citing, for example, its controversial notice-posting rule (invalidated by the Fourth Circuit), its “ambush election” rules (currently held in abeyance), and its aggressive scrutiny of employer policies such as blanket confidentiality agreements, social media rules, mandatory arbitration, and at-will employment. Employers are girding themselves for more of the same, only now from an agency emboldened by imprimatur.

Griffin is generally expected to follow the trail forged by the embattled Solomon — whose constitutional authority to act has been called into question as well — and whose tenure was marked by criticism from employers for what they construed as an unprecedented foray into the nonunion workplace. (Solomon, a career NLRB lawyer, also has been criticized by several of the agency’s administrative law judges, with three decisions of late that have expressly questioned the conduct of the GC’s office in issuing complaints.)

“I am often accused of applying the NLRB to the nonunion workforce in a novel way,” Solomon said. But the notion of nonunion workers banding together to seek improvements in terms and conditions of employment “was embedded in the Act in 1935, and all Boards and GCs have enforced the law against nonunion employers,” he pointed out. “I would argue that the current Board and I have not done anything novel or unprecedented.”

“The NLRB does not solicit any charges; we only act on what complaints are filed with the office,” he added. “I don’t say this flippantly, but it is a price of doing business in this country that there are protections for workers’ rights.”

Practical effect. For labor unions and employees, a fully functioning NLRB is a welcome development, as AFL-CIO President Richard Trumka noted after yesterday’s confirmation vote. “The NLRB is now running on all cylinders to meet its duty to fairly and impartially oversee the workplace rights of millions of Americans,” he noted. “A functioning NLRB is good news for all workers — whether they belong to a union or not — seeking to exercise the rights they are guaranteed by law.” Moreover, with a fully approved NLRB, the agency’s rulings are now impervious to court challenge on constitutionality grounds.

The Board’s rulemaking function, though, will face obstacles, even with its Senate-approved makeup. In vacating the Board’s contested rules, the circuit courts based their decisions not on the validity of the recess appointments but rather, on free speech grounds under Sec. 8(c) or on the theory that the Board’s limited authority under Sec. 6 allows it to serve merely in a “reactive” capacity — addressing unfair labor practice charges and conducting representation elections upon request. The circuit courts’ reasoning on these points applies with equal force when the Board’s composition is constitutionally sound.

Much will turn on the Supreme Court’s decision in Noel Canning, for which oral argument has yet to be scheduled. A ruling that the recess appointments were improper would invalidate hundreds of NLRB decisions issued since 2010 (as well as, arguably, Board complaints, subpoenas, regional director appointments, and other prosecutorial and adjudicatory functions carried out in recent years). While the validly constituted Board could simply affirm these prior actions, such rubber-stamping could keep the agency sidetracked for a while.

Republicans look to “restructure.” Urging that the NLRB needs to be “umpire rather than advocate,” Lamar Alexander, senior Republican on the Senate HELP committee, opposed Griffin’s nomination, noting that his “background as a union advocate and his work as general counsel for one of the major unions doesn’t do anything to help me believe that he will improve the situation at the NLRB.” In a statement following Tuesday’s vote, Alexander contended that the Board had become “far too politicized under recent administrations. That didn’t start with the Obama administration, but it’s gotten worse with this administration as it has moved toward the side of union advocacy.”

Alexander said he will introduce legislation later this fall that would offer “long-term solutions” to “restore balance” to the agency. His proposal, he promised, would “retain the rights of workers and employees, but reduce the swing that occurs from administration to administration based upon who is in power. What we should be striving for is fairness and consistency.”

What lies ahead? Will the newly constituted NLRB tread carefully, having been humbled by its critics? Or will the duly appointed members come out swinging, taking full advantage of the Board’s Democratic majority and its newfound legitimacy? Will the agency revive its rulemaking and policy initiatives? Will it continue its effort to “expand” its reach to nonunion workers? Or will Senate Republicans convince wayward Dems to join them in a wholesale restructuring of the labor agency? Stay tuned.

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When does a heavy workload support a lawsuit against an employer?

October 25th, 2013  |  Lorene Park  |  1 Comment

By Lorene D. Park, J.D.

Think an employee is just venting when she complains of a heavy workload and no action is required on your part? Think again. Forget for a moment that excessive workloads can lead to low morale and high turnover; we are talking lawsuits. While a heavy workload is not always actionable, there are circumstances when a court considers it to be evidence of bias, perhaps even an adverse employment action for purposes of a discrimination or retaliation claim. And an employee’s “venting” may constitute a “protected activity” under anti-retaliation provisions. While the success of such claims will depend on the facts, one thing is certain: It is not in an employer’s best interest to simply ignore complaints over excessive workloads.

Discrimination. One obvious time when it is a bad idea to ignore complaints over workload is when an employee has a physical impairment. Indeed, in cases where a physician has placed limits on an employee (such as a lifting restriction) or required periodic breaks, the fact that an employer ignored the limits could, by itself, be found serious enough to alter the terms and conditions of employment, thus establishing an adverse action in a disability discrimination case (Pierce-Schmader v Mount Airy Casino & Resort). And if the workload itself is not an adverse action, an employee may argue it was so intolerable that a reasonable person would be compelled to quit, providing “constructive discharge” as the adverse employment action element in a discrimination case.

Outside of the disability discrimination context, it is more common for a court to find that a heavy workload is not, by itself, an adverse action. However, it may still be evidence of bias. For example, in one pregnancy discrimination case, the Seventh Circuit reversed summary judgment for an employer based, in part, on evidence that an employee’s workload was increased soon after she announced her pregnancy (Hitchcock v Angel Corps, Inc). In another case, a Hispanic housing inspector assigned to a large geographic area complained that he had too many files backlogged and that a much smaller area was assigned to five Caucasian employees. Not only did management not respond to his complaints, it disciplined the employee for falling behind. A federal court in New York refused to dismiss his race discrimination claims, find that the disparate assignments and discipline supported an inference of bias (Santana v City of Ithaca).

Retaliation. An excessive workload (or an employee’s complaint about an overload) is more likely to support a retaliation claim than a discrimination claim for two reasons. First, complaining about a heavy workload can be seen as a protected activity if the employee reasonably believes he or she is complaining of unlawful activity (such as complaining that the heavier load is due to race). Second, when a workload is increased following a protected activity, it is also more likely to constitute an “adverse employment action” because, unlike a discrimination claim (which requires a change in the terms and conditions of employment), a retaliation claim only requires showing that the heavier workload was likely to dissuade a reasonable employee from making or supporting a discrimination claim — which is an easier standard to meet.

Thus, even if a court finds that an excessive workload did not constitute a sufficient adverse action for purposes of a discrimination claim, it could still support a retaliation claim. For example, in one case, allegations that an excessive workload, negative reviews, and undue discipline were due to an employee’s race as well as retaliation for her complaints were enough to avoid summary judgment on the retaliation claim, but the discriminatory workload claim failed because it did not involve an “ultimate employment decision” (Carter v Target Corp).

In cases where a court does not consider a heavy workload to be an adverse action, it can still be evidence of retaliatory intent and support a lawsuit beyond the summary judgment stage. After one professional employee complained internally that her supervisor treated her differently than white male colleagues, including by requiring her to fetch coffee for meetings, her supervisor increased her workload, slighted her contributions, and excluded her from meetings. In the court’s view, this circumstantial evidence of a “pattern of antagonism” raised an inference of retaliation and was enough to support her Title VII claim (Brangman v AstraZeneca, LP). Likewise, five African-American employees were allowed to proceed on their retaliation and hostile environment claims based, in part, on an allegation that, after a coworker filed an EEOC charge on behalf of herself and a “class of Black employees,” they were given excessive workloads as compared to non-African-American workers (Rogers v Ford Motor Co).

Accommodating a disability. Another context in which an excessive workload can support a lawsuit involves failure to accommodate claims under the ADA and similar state laws. The ADA does not require an employer to place an employee on permanent light duty or give other workers an employee’s assignments to accommodate a physical impairment (Josey v Wal-Mart Stores East, LP). However, a temporary lightening of the employee’s load could be considered by a court to be a reasonable accommodation if the employee is recovering from a physical impairment. For example, an employer that ignored a nurse’s request for light duty due to a work-related injury and then forced him to take leave was denied its motion to dismiss his ADA, FMLA, and state law claims (Hepner v Thomas Jefferson University Hospitals, Inc). In other cases, employers ignored physician restrictions for employees to work no more than 40 hours a week. Try arguing to a court — or jury — that it would be unreasonable or an undue burden on the company to refrain from requiring overtime by a physically impaired employee. It likely will not go well.

Meal breaks and rest periods. Not surprisingly, an allegation that an employee was unlawfully forced to do too much work can also arise in wage and hour cases under the FLSA and state laws, including those that require meal and rest periods. The typical FLSA case involves employees who were not paid for after-hours work — which is less about workload than it is about compensation. Claims of excessive work can also support lawsuits over breaks required by state law. For example, a federal court in California ruled that an employee, who was given a “voluminous workload” that prompted her to work through lunch and rest periods, could proceed to a jury trial on her claims under the state’s labor code (Butler v Homeservices Lending LLC). The court was not convinced by a manager’s assertion that the employee simply chose to skip her meal and rest periods after she was given permission to freely construct her schedule as she saw fit. I wonder what the jury will think.

Free speech. For public employers, an employee’s complaints over excessive work could be considered protected speech under the First Amendment. In one case, a female forensic pathologist complained to the director of the office of the medical examiner that the caseload for medical examiners was too heavy due to a recent reduction in force and the chief’s moonlighting elsewhere; she was fired. Refusing to dismiss her retaliation claims under the First Amendment, Title VII, and state law, the court found that her complaints raised a matter of public concern as to the mismanagement of the department’s workforce (Chen v Maricopa County).

So what should an employer do? These cases show that excessive workloads can support a myriad of claims against an employer. In response, some employers have successfully argued that the workload was imposed for lawful business reasons. For example, perhaps there was a reduction in force because the employer needed to increase profits. And in other cases, employers have avoided liability by showing they were unaware of any discriminatory or retaliatory conduct and took action once the employee complained. With that in mind, here are some steps to take if an employee complains that he or she is being given too much work:

  • Investigate — both “how” and “why” are important
    • Ask in what way it is excessive
    • Find out if the employee is comparing his or her workload to someone else
    • Find out if the workload has always been heavy or if this is a change (in reality or in the employee’s perception); investigate why any change happened
  • Accommodate special circumstances (e.g., physical impairment)
  • Make sure meal and break periods are being honored
  • Work with the employee toward a solution — minor adjustments may go a long way
  • If the workload is due to a legitimate business reason (e.g., seasonal increase in business), explain to the employee (be consistent; don’t change reasons if the EEOC comes calling)
  • Address any unfairness — it may turn out that the employee is correct and that there is an unequal distribution of work; if that is the case, address it

Not only will taking these steps support a defense in any lawsuit filed over excessive workloads, it will also improve morale. Moreover, when the workload is spread more evenly, there should be an increase in efficiency and decrease in turnover.

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Federal contractors should consider limits on OFCCP’s audit authority, expert advises

October 23rd, 2013  |  Cynthia L. Hackerott  |  Add a Comment

Because long and contentious audits have been the trend during the current administration, contractors may want to consider challenging the OFCCP’s authority to conduct audits, including the “nuclear option” of challenging the constitutionality of Executive Order (EO) 11246, advised employment law expert David A. Copus at the National Employment Law Institute’s (NELI) Thirty-First Annual Affirmative Action Briefing in Chicago, Illinois. Recognizing that litigation challenging the OFCCP’s authority can take years, Copus emphasized that he was not advocating that all contractors mount such challenges, but rather, that they at least consider doing so. In any event, when responding to the OFCCP’s demands, contractors should state their objections in order to preserve their rights should they chose to exercise them.

Constitutionality of EO 11246. Executive Order (EO) 11246 may not be constitutional, according to Copus, adding that this issue has never been squarely resolved by the courts. Because the Constitution does not grant the President legislative authority, the President cannot validly issue an executive order, unless Congress has delegated that authority to the President, he explained. However, the specific of grant of legislative authority by Congress to the President, if any, that authorizes EO 11246 is not clear, he said. On this point, he highlighted the following statement from the U.S. Supreme Court’s 1979 decision in Chrysler Corp v Brown (19 EPD ¶9121): “The origins of the congressional authority for Executive Order 11246 are somewhat obscure and have been roundly debated by commentators and courts.”

Only one statute, the Federal Property and Administrative Services Act of 1949 (commonly known as “the Federal Procurement Act”), might allow the Presidential authority for EO 11246, Copus said. He cited two court decisions touching on this issue — Chrysler Corp and the Fourth Circuit Court of Appeal’s 1981 decision in Liberty Mutual Insurance Co v Friedman (24 EPD ¶31,457).

In Chrysler Corp, the High Court addressed a challenge by a federal contractor to OFCCP regulations regarding agency disclosures to third parties under the Freedom of Information Act.  Although it did not rule specifically on whether the Procurement Act authorized the President to issue EO 11246, the High Court held that in order for any regulations under EO 11246 to have the force and effect of law, there must be a nexus between the regulations and the delegation of the requisite legislative authority. The Labor Department asserted that several statutes, including the Federal Procurement Act and Title VII, provided the requisite grants of legislative authority by Congress for the regulations at issue. But the Court disagreed, finding the required nexus did not exist because, when Congress passed these statutes, it was not concerned with public disclosure of trade secrets or confidential business information.

The Fourth Circuit applied this nexus test in Liberty Mutual Insurance Co, where it held that the OFCCP could not apply EO 11246 regulatory requirements to a federal subcontractor that sold workers’ compensation insurance to federal contractors because such application was outside the scope of any grant of legislative authority. The appeals court examined the possible statutory sources of congressional authorization for EO 11246, and, citing a footnote in Chrysler Corp, found that neither Titles VI nor VII of the Civil Rights Act of 1964 contain any express delegation of substantive lawmaking authority to the President. The Fourth Circuit determined that the only plausible Congressional source for the President’s authority to issue the EO was the Federal Procurement Act, which authorizes the President to prescribe policies and directives necessary to fulfill the Act’s purpose of promoting efficiency and economy in the government’s procurement process. Still, the Fourth Circuit avoided the question of whether the Federal Procurement Act was in fact a legitimate grant of legislative authority for EO 11246 and found that even if it was, there was not a reasonably close nexus between procurement costs and the defendant insurance company’s employment practices.

UPMC Braddock appeal. Copus pointed out that this issue has been raised in a case, UPMC Braddock v Perez, currently pending before the D.C. Circuit Court of Appeals.

In that action, three hospitals affiliated with the University of Pittsburgh Medical Center (UPMC) Health Plan, an HMO, have appealed a ruling by the federal district court for the District of Columbia holding that, although the hospitals did not directly contract with the federal government, they were still subject to OFCCP jurisdiction as federal subcontractors (UPMC Braddock v Harris, March 30, 2013, (96 EPD ¶44,801)). The district court found that the hospitals were covered federal subcontractors because they had contracts with an HMO to provide medical products and services covered by the HMO under the HMO’s contract with the US Office of Personnel Management OPM to provide medical coverage to US government employees. In their appellate brief, the hospitals assert, among other arguments, that neither Title VII nor the Federal Procurement Act provide the necessary legislative authority for the affirmative action programs for minorities and women required by the OFCCP’s regulations implementing EO 11246.

Fourth Amendment. Aside from the issue of the constitutionality of EO 11246, contractors should consider protections against OFCCP investigative authority afforded to them under the Fourth Amendment, Copus said, explaining that the Fourth Amendment provides both procedural and substantive protections. Moreover, there is “plenty” of legal authority that a contractor’s Fourth Amendment rights cannot be waived as a condition of contracting with the federal government, according to Copus.

Procedural protections. He noted that the Fourth Amendment requires, but the OFCCP has not adopted, the Fourth Amendment procedural protections of:

  1. subpoenas for contractor objections to off-site investigations, as required by the High Court’s 1946 decision in Oklahoma Press Pub Co v Walling (10 LC ¶51,222), and
  2. warrants for contractor objections to on-site investigations, as required by Supreme Court’s 1978 ruling in Marshall v Barlow’s Inc (436 U.S. 307).

Although the OFCCP has not established procedures for obtaining a warrant or issuing a subpoena the absence of such procedures has not be challenged in litigation, Copus observed.

Substantive off-site investigation protections. As to substantive Fourth Amendment protections, there is a clear distinction between on-site and off-site demands. For off-site investigations, the scope of power that the Supreme Court has granted administrative agencies such as the OFCCP is broad, Copus noted. The seminal case regarding off-site investigations is Oklahoma Press, where the Supreme Court ruled on a Labor Department demand of documents for an off-site review in a FLSA case. In essence, the only real substantive limitation on an administrative agency’s demand for the off-site production of documents or witnesses is one of “reasonableness,” he said.

Generally, the OFCCP makes two types of off-site document demands:

  1. the documents and data it receives from the contractor in response to the “Itemized Listing” that accompanies the agency’s audit scheduling letter; and
  2. supplemental data requests based on the agency’s preliminary analysis of the information it receives in response to the Itemized Listing.

Under Oklahoma Press, contractors could demand a subpoena for the above information, according to Copus, adding that the regulations which allow the OFCCP to make these demands without a subpoena are unconstitutional.

Substantive on-site investigation protections. Contractors have more substantive protections against on-site investigations, Copus said. For on-site demands, the seminal case is Barlow’s. In that case, the Court found that OSHA’s demand for entry onto a facility for safety inspection violated the Fourth Amendment because OSHA failed to justify its demand. There are only two acceptable justifications for an on-site demand, the Court ruled: (1) “probable cause,” meaning specific evidence of an existing violation of the law; or (2) a neutral selection plan.

Therefore, the OFCCP’s on-site investigation based on evidence of an existing violation of the law cannot go beyond scope of potential violation identified by the agency. Thus, contractors should get the OFCCP to define precisely what the suspected violation is before allowing the agency on-site, and contractors should not allow the OFCCP on-site access beyond this scope, Copus advised.

Again, he pointed out that the Fourth Amendment’s procedural requirements apply to all government civil investigations, and thus, suggested that contractors consider demanding that the OFCCP obtain a warrant prior to conducting an on-site investigation.

If a contractor chooses to accede to the OFCCP’s demands for information or access, Copus advised that the contractor preserve its rights — by including in its responses to the OFCCP’s demands explicit disclaimers of any waivers of rights — in order to preclude any later claim by OFCCP that the contractor has waived its rights to object by complying with the agency’s demands.

Paperwork Reduction Act. Another constraint on the OFCCP’s investigative authority is the Paperwork Reduction Act (PRA). The PRA requires that requests for information using identical questions posed to, or reporting or recordkeeping requirements imposed on, ten or more members of the public be approved by the Office of Management and Budget (OMB).

In United Space Alliance, LLC v Solis, the federal district court for the District of Columbia ruled that the OFCCP’s practice of requesting data beyond that required in response to the OMB-approved standard scheduling letter (including the Itemized Listing) did not violate the PRA (November 14, 2011 (94 EPD ¶44,325)). The contractor in that case argued that such a request violated the PRA because it was based on an investigation standard (used to determine “indicators” of compensation bias) applied in OFCCP desk audits throughout the county. But the court disagreed. The PRA was not applicable because prior OMB approval is required only for general investigations of a category of companies; prior OMB approval is not necessary for investigations of specific companies. Because the OFCCP’s request was based upon “indicators” of potential discrimination specific to United Space Alliance, it was a PRA-exempt investigation of a specific company, the court concluded.

Even though United Space Alliance provides that the OFCCP does not need prior OMB approval for boilerplate data requests when investigating specific companies, the decision also states that the agency must obtain prior OMB approval for boilerplate information requests when conducting general investigations of a category of companies, Copus pointed out. Thus, contractors should be able to challenge, based on the PRA, standardized off-site or on-site investigation demands not based on “indicators” of potential discrimination.

Debarment risk. Copus described debarment, i.e. rendering a company ineligible to receive federal contracts, as the OFCCP’s “nuclear option.” However, involuntary debarment is not a risk that contractors ever really face from resisting the OFCCP’s demands, he said.

Courts have uniformly held that the OFCCP cannot use debarment as a punishment for contractors who simply oppose the agency’s demands, according to Copus. Both EO 11246 and the relevant case law provide that the OFCCP cannot debar on contractor without a hearing. The hearing process typically begins when the agency files an administrative complaint against the contractor and the process may eventually go through the federal court system. Under the doctrine articulated in the Seventh Circuit’s 1979 decision in Illinois Tool Works, Inc v Marshall (20 EPD ¶30,134), the agency cannot take any action regarding the company’s contracts throughout the trial and appeal process.

Even if the agency goes through the hearing process and the contractor ultimately loses, the contractor can still avoid debarment by simply complying with the OFCCP’s demands, Copus stated. In the alternative, the contractor could voluntarily give up its government contracts rather than comply. “It’s your choice,” he told the audience.

The presenter. Copus has more than 35 years of litigation and counseling experience and has regularly represented employers in OFCCP matters, including hundreds of standard OFCCP compliance evaluations and “glass ceiling” audits. He began his legal career in 1969 at the Equal Employment Opportunity Commission (EEOC), where for many years he headed the National Programs Division. Since 1977, he has been in private practice representing employers, and he has recently retired from Ogletree Deakins in Morristown, New Jersey.

NELI’s Thirty-First Annual Affirmative Action Briefing was held in Chicago on October 3-4, 2013. For more information on NELI, including its publications and future programs, call (303) 861-5600 or go to NELI’s website at: www.neli.org.

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USERRA’s escalator principle and discretionary promotions

October 23rd, 2013  |  Kathy Kapusta  |  Add a Comment

With more than a million veterans expected to return home over the next five years, complying with the legal requirements governing the reemployment of returning service members under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is an increasingly challenging issue for employers nationwide. Enacted in 1994, USERRA is intended to encourage non-career military service by eliminating or minimizing the disadvantages to civilian careers; minimizing the disruption of servicemembers and their employers by providing for the prompt reemployment of servicemembers; and prohibiting discrimination against servicemembers.

In 2011, the Department of Labor reported that the Veterans Employment and Training Service reviewed 1,548 new USERRA complaint cases, up 110 cases from 2010. Nearly 35 percent of the complaints involved allegations of some form of employment discrimination on the basis of past, present, or future military service, status, or obligations while an additional 25 percent involved allegations of improper reinstatement into civilian jobs following military service.

Escalator principle. Under USERRA’s “escalator principle,” a returning service member must be placed into the position the person would have attained with reasonable certainty if the person had not been absent for military service. Thus, a veteran does not step back on the seniority escalator at the point he stepped off, but rather steps back on at the precise point he would have occupied had he kept his position continuously and not been absent because of military service. How promotions associated with longevity are handled for returning veterans can be problematic. A recent decision from the First Circuit sheds some light on this issue. In that case, the appeals court vacated a lower court’s finding that a navy veteran was not entitled to be employed as a team leader upon his return from active duty because the position was not an “automatic promotion” but instead involved employer discretion.

Called to duty. The employee was called to active duty in Iraq in October 2008. At that time he was employed as a group leader. While he was gone, however, his employer restructured his department and eliminated his position, replacing it with two separate classifications: a new team leader position and a service coordinator position. The positions were posted and filled before the employee returned from Iraq.

When he returned from military service, he was placed in a position with the same pay and benefits as his old job, but with reduced responsibilities. He subsequently sued, asserting a number of claims under USERRA, including that he was entitled to be rehired to the new team leader position upon his return from active duty. The district court, granting summary judgment to the employer, held that because the position was not an “automatic promotion” but instead involved employer discretion, it was not his escalator position; thus, the employee was not entitled to it under USERRA.

DOL regulations. On appeal, the employee contended that the lower court erred in holding that USERRA’s escalator principle, and its associated reasonable certainty test, apply only to automatic promotions. The appeals court turned to the Department of Labor’s regulations for guidance. Specifically, it found that 20 CFR Sec. 1002.191 provides that as a general rule, an employee is entitled to reemployment in the job position that he would have attained with reasonable certainty if not for his absence due to uniformed service.

In designing its final rules implementing USERRA, the DOL considered whether the escalator principle applies to promotions based on an employer’s discretion. Unambiguously rejecting suggestions that it did not, the DOL stated that the governing regulations incorporate “the reasonable certainty test as it applies to discretionary and nondiscretionary promotions,” and that these rules promote “the application of a case-by-case analysis rather than a rule that could result in the unwarranted denial of promotions to returning service members based on how the promotion was labeled rather than whether or not it was ‘reasonably certain.’” In the court’s view, the DOL declined to alter the regulations to indicate that discretionary non-automatic promotions would not be subject to the escalator principle and the reasonable certainty test.

Universal Military Training and Service Act. In support of its holding that an escalator position is a promotion that is based solely on employee seniority, the district court turned to McKinney v Missouri-Kansas-Texas Railroad Co, a 1958 case in which the Supreme Court, interpreting the Universal Military Training and Service Act of 1951, held that a returning veteran seeking reemployment “is not entitled to demand that he be assigned a position higher than that he formerly held when promotion to such a position depends, not simply on seniority or some other form of automatic progression, but on the exercise of discretion by the employer.” The lower court, however, failed to consider the Supreme Court’s subsequent decision in Tilton v Missouri Pacific Railroad Co, in which the High Court found that McKinney “did not adopt a rule of absolute foreseeability.”

The Court in Tilton further found that Congress intended that a reemployed veteran would enjoy the seniority status that he would have acquired by virtue of continued employment but for his absence in the military service. “This requirement is met if, as a matter of foresight, it was reasonably certain that advancement would have occurred and if, as a matter of hindsight, it did in fact occur.” Read together, the First Circuit found, McKinney and Tilton suggest that the appropriate inquiry in determining a returning service member’s proper reemployment position is not whether a promotion is automatic but rather whether it was reasonably certain that the service member would have obtained the position but for his absence due to military service.

Regs misinterpreted. The appeals court also found that the district court misinterpreted the regulations governing USERRA. Specifically, it pointed out that the lower court cited to Sec.1002.191 for the proposition that the escalator principle “is intended to provide the employee with any seniority-based promotions that he would have obtained ‘with reasonable certainty.’” However, the appeals court noted, nothing in Sec. 1002.191 suggests that the escalator principle is limited to seniority-based promotions. Further, the lower court cited Sec. 1002.213 to support its conclusion that an escalator position is a promotion that is based solely on employee seniority. Again, the appeals court found that while Sec. 1002.210 through Sec. 1002.213 specifically address “seniority rights and benefits,” and make clear that the reasonable certainty test and escalator principle apply to promotions that are based on seniority, they do not limit the application of the reasonable certainty test and the escalator principle to seniority-based promotions.

Thus, concluding that the district court erred in finding that the escalator principle and the reasonable certainty test apply only to automatic promotions, the First Circuit vacated that portion of judgment appealed from relating to the employee’s reemployment claim and remanded to the district court for further proceedings.

Plan ahead. The best thing you can do in anticipation of veterans’ reemployment is to plan ahead. Begin by understanding your organization’s obligations under USERRA and by training HR personnel and managers on those requirements. Then you can prepare by knowing when employees are expected to return from leave and plan accordingly. Don’t wait until the employee is back with a list of questions and concerns. As with most employee relations issues, due diligence and preparation are keys to success.

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Charges fly at VW’s Chattanooga plant

October 17th, 2013  |  David Stephanides  |  Add a Comment

Updating an earlier post, eight VW workers at the automaker’s Chattanooga, Tennessee, plant have filed charges with the NLRB against the UAW, saying that it misled and coerced them, along with other workers, into forfeiting their rights during the recent card check unionization drive, according to the National Right to Work Legal Defense Foundation (NRTW). Via free legal assistance from NRTW lawyers, the workers filed their charges at the NLRB’s regional office in Atlanta.

And on October 16, it was reported that four more workers filed a federal charge with the Board alleging that statements by German VW officials illegally coerced them into UAW representation, also according to the NRTW. The charge comes after the officials stated, according to recent media reports, that for any expanded production to be considered in Chattanooga, the plant must adopt a works council that would force workers to accept the representation by the UAW.

“With reports that Volkswagen is considering Chattanooga to build its new SUV, this is no idle threat,” said Mark Mix, NRTW president. “If VW management was discouraging workers from joining the UAW with threats, there’s little question that an NLRB prosecution would have already begun at the UAW’s behest.”

The cards not only authorized the union to represent the workers, they also ostensibly authorize the importation of a German-style “work council” to the U.S. plant. The card includes language stating that the workers “commend and embrace the Volkswagen philosophy of co-determination and aim to contribute to the production of the highest quality products, safe and efficient production methods, and the overall profitability of Volkswagen.” The language goes on to state: “We believe that the best way to actively participate in our company and to contribute to VW’s continued success is to achieve representation as our colleagues have at the other 61 Volkswagen facilities across the globe.”

The charges filed by the VW workers — some nine days after a UAW spokesperson confirmed to Employment Law Daily that the union had obtained a majority of UAW authorization cards — are said to state that union organizers told the workers that a signature on the card was to call for a secret ballot unionization election. The charges also purportedly allege other problems in the card check process, including that some of the cards used were signed too long ago to be valid. The NLRB charges seek an order that UAW union officials cease and desist from demanding recognition based upon the tainted cards.

According to the NRTW, union officials have told workers that they must physically appear at the union office if they want their cards returned to them. Purportedly, these workers sought to revoke their signatures following media reports suggesting that workers were misled or bribed into signing cards.

The NRTW acknowledges that this latest development stems from a NRTW “special legal notice” targeted to the VW workers. The notice points to the decline of the UAW and suggests that the union now “sees German-style ‘works councils’ as its salvation.” The notice also disputes the alleged claim of the UAW’s president that workers must join the union and authorize it to be exclusive bargaining agency in order to have such a work council. The NRTW’s targeted notice also advises VW workers of several rights under the NLRA, including their right to revoke a union authorization card that they have signed and exactly how to do so.

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