President Obama’s January 2012 recess appointments to the NLRB failed to pass constitutional muster, the U.S. Supreme Court held Thursday. Because the Board appointments were invalid, the Board itself lacked a quorum and so could not lawfully act. The High Court thus affirmed a decision of the D.C. Circuit invalidating the agency appointments. However, the decision was not a total defeat for the executive branch. The Court held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or intersession — of “sufficient length.” Here it determined that three days were too short a time to trigger a recess within the scope of the Clause. Justice Scalia filed a separate opinion concurring in the judgment (NLRB v Noel Canning, June 26, 2014, Breyer, S).
Noel Canning petitioned for review of an NLRB order claiming that the Board lacked a quorum because three of its five members had been appointed invalidly. The nominations of the three members were pending before the Senate when it passed a resolution for a series of “pro forma sessions” with no business transacted. Invoking the Recess Appointments Clause, which gives the president the power “to fill up all Vacancies that may happen during the recess of the Senate,” the president appointed the three members between two pro forma sessions. Noel Canning asserted that the Board lacked authority to act for want of a quorum, arguing the three members were never validly appointed because they took office under recess appointments when the Senate actually was not in recess. Specifically, Noel Canning argued that the three-day adjournment between the two sessions was not long enough to trigger the Recess Appointments Clause.
As an initial matter, the Supreme Court held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or intersession — of sufficient length. The Clause should be interpreted as granting the president the power to make appointments during a recess but not offering the president the authority routinely to avoid the need for Senate confirmation.
Recess appointments generally. Observing that presidents have made recess appointments since the beginning to the Republic, the High Court concluded that the Senate and president have recognized that such appointments can be both necessary and appropriate in certain circumstances. Thus, in interpreting the Clause for the first time, the Court hesitated to upset the compromises and working arrangements that the elected branches of government themselves have reached.
Inter-session and intra-session. The phrase “the recess of the Senate” applies to both intersession recess — breaks between formal sessions of the Senate — and intra-session recesses — breaks in the midst of a formal session — of substantial length. The Senate has never taken any formal action to deny the validity of intra-session recess appointments. However, here the Court found that the Senate was in session during the pro forma sessions. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business.
Three days not enough. The NLRB recess appointments at issue in this case came during a three-day recess. Concluding that a three-day recess appointment was too short to trigger the Recess Appointments Clause, the Court held that President Obama lacked the authority to make those appointments. As a result, the High Court affirmed the appeals court’s judgment that the President’s appointments were invalid, so that the NLRB did not have a quorum and could not lawfully act.
Justice Breyer’s majority opinion was joined by justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Scalia filed an opinion concurring in the judgment, in which Chief Justice Roberts joined, as well as justices Thomas and Alito.
Later this year or into the next, the National Labor Relations Board could issue decisions on several issues it has signaled its intent, via invitations to file briefs, to decide. First up, the Board intends to take up the question of whether Northwestern University football players are “employees” who can unionize. In March 2014, an NLRB regional director ruled that grant-in-aid scholarship football players at Northwestern were statutory employees under the NLRA and directed a representation election to take place (the results of the election have been impounded). The regional director concluded that scholarship players who perform football-related services for the university under a contract for hire in return for compensation are subject to the employer’s control and are, therefore, employees within the meaning of the Act.
Next, the Board has solicited briefs regarding employees’ use of electronic communication in conjunction with their Section 7 rights and the question of whether the Board’s 2007 decision in Register Guard should stand. In the underlying case, an administrative law judge, relying on Register Guard, dismissed an allegation that an employer unlawfully prohibited use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes.
The NLRB General Counsel and the Communication Workers of America, AFL-CIO, have asked the Board to overrule Register Guard and adopt a rule that employees who are permitted to use their employer’s email for work purposes have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.
Finally, the Board intends to address its joint employer standard. The Board has asked: Should the Board adhere to its existing joint-employer standard or adopt a new standard? And, if a new standard involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?
With these decisions in the pipeline, and with a full Board sitting, it promises to be an interesting and invigorating time for those keeping an eye on the labor law landscape.
By Lorene D. Park, J.D.
As I sort through employment law decisions to help choose which ones to cover in Employment Law Daily, I am often struck by the sheer number of sexual harassment cases. It would seem that many individuals never learned a fundamental lesson imparted by parents or kindergarten teachers: keep your hands to yourself. There are also those individuals who feel the need to tell others at work what they would like to be doing with their hands (or other body parts). Sad but true — it often falls to employers to weed out employees who never learned to keep their hands to themselves (and to keep their sexual thoughts to themselves). Otherwise, the employer may be on the hook for other employees’ damages.
Physical contact. In one case, a federal court in New York found the detailed and overwhelming evidence of disturbing sexual harassment, which culminated in a violent sexual assault by a coworker, compelled summary judgment in favor of three restaurant employees. Moreover, evidence that the restaurant manager laughed along with the harassers was enough to grant summary judgment to the employees on their state law claim against him individually as well (D’Annunzio v Ayken, Inc dba Ayhan’s Fish Kebab Restaurant). In another recent case, a federal court in Louisiana denied a dental practice’s motion for summary judgment on the sexual harassment claim by a dental assistant who felt compelled to quit after the dentist’s sexual advances culminated in him forcibly grabbing and fondling her breasts (Nastasi v Ilawan). Can someone please tell me who would NOT feel compelled to quit? Anyone?
These cases are not limited to male-on-female harassment either. In one federal case, a female police officer whose female sergeant made repeated sexual advances and eventually attacked the officer when those advances were rebuffed, survived a motion to dismiss her sexual harassment claim against the city of New York (Bethea v City of New York).
Though many courts find unwanted physical contact to be particularly persuasive when it comes to determining if there is actionable sexual harassment, touching is sometimes not enough. For example, two incidents of alleged “butt-touching” on one day, even considering that the employee who was touched alleged that other employees told her of several similar but unreported incidents, simply were not objectively severe enough to alter the terms and conditions of her employment, concluded a federal district court in Alabama, granting summary judgment to the employer on her hostile work environment claim (Stallworth v Guyoung Tech USA, Inc). A federal court in Texas essentially came to the same conclusion in dispensing with the sexual harassment claims of a male nursing home employee whose rear end was slapped twice by a female coworker. The alleged harassment was simply not severe or pervasive enough to be actionable (Jones v Divercare Afton Oaks).
Words and images. In other cases, sexual harassment claims proceed solely based on evidence of sexually-laden comments, images, or messages in the workplace. For example, a federal court in South Dakota refused to dismiss the hostile work environment claim of an employee who was sent three sexual images by a project manager who also made sexual comments and gestures, including that he could do whatever he wanted (Houck v ESA, Inc). In another case, a federal court in New York refused to dismiss a male employee’s hostile work environment claim where his female boss frequently commented on his body (including his V-shaped back) and on his “lucky” wife, all while making seductive facial expressions (Cruz v New York State Department of Corrections and Community Supervision). And in one case that makes all lawyers look bad (as if some lawyers needed the help), the Ohio Supreme Court suspended for one year an attorney who sent sexually explicit texts to his law clerk, suggesting not only that she perform sexual favors for him but indicating that her job depended on compliance (Lake County Bar Association v Mismas).
The best defense. Employers that want to avoid liability will address sexual harassment immediately and effectively. Having a clear policy defining sexual harassment and prohibiting it is not enough. The policy must be enforced. Treat all complaints seriously and fully investigate, using an impartial investigator. Also, take intermediate measures during the investigation to protect the employee who complained. At the conclusion of the investigation, take appropriate disciplinary measures if called for and follow-up to make sure the measures worked and the harassment stopped.
An effective anti-sexual harassment policy, well enforced, does not just benefit employees; it also gives an employer the chance to defend a sexual harassment suit with the Ellerth/Faragher affirmative defense (for laypersons, this involves avoiding liability by showing the employer exercised reasonable care to eliminate harassment and showing the employee unreasonably failed to take advantage of preventative or corrective opportunities). Even if the Ellerth/Faragher defense turns out to be unavailable, the responsive and corrective measures taken by an employer to end harassment can go a long way to limiting subsequent liability.
While a supervisor’s use of the “n-word” or other racially offensive epithets clearly provides strong evidence in support of a finding of racial bias, what about the use of a more ambiguous phrase such as “you people?” A survey of recent cases reveals that the phrase is used surprisingly often. And while context, of course, counts, a recent decision from a federal court in New York suggests that it may be a good idea to add that phrase to the list of words that should be banned from the workplace.
In that case, the court found that a Holiday Inn general manager’s comment — made during a heated, profanity-laced confrontation with an African-American employee, in which he said something to the effect of “you people are never satisfied” shortly before he fired the housekeeper — together with his shifting explanations for her termination, were sufficient to support her contention that her release was motivated by her race.
“You people are never satisfied”
The confrontation arose out of an email that the GM wrote to the employee’s supervisor expressing his displeasure with the entire housekeeping staff. He also specifically complained about the employee’s check in/check out times and his inability to find her that morning even though she was punched in. He concluded the email by stating that he was “done with attitudes, the sense of entitlement, the sense of disrespect from your department” and if “things don’t change, I will clean house and start from scratch.”
When the employee learned about the email, she confronted the GM. She contended that in addition to the “you people” comment, he also told her “I’m fu*king tired about [sic] you people. You [sic] always complaining about something, this or that and this or that.” She was fired after she allegedly told him to “fu*k off.” The employee, however, claimed that she didn’t tell him that until after she was terminated. She then sued, asserting a Title VII claim for race discrimination.
Up to the jury
While the employer did not dispute that the GM uttered some form of the phrase “you people are never satisfied,” it implied that the phrase was not a reference to black people but instead to the entire housekeeping staff. The court, however, found that a fact issue existed as to the phrase’s intended meaning. Noting the employee’s contention that the GM uttered the phrase soon after reminding her that he had allowed her family to stay in the hotel free of charge, the court observed that a factfinder could conclude that he was upset that the employee, a black woman, continued to raise complaints despite his generosity.
However, the hotel’s suggestion that he was referring to the housekeeping staff was also plausible as the confrontation was precipitated by his email, which called into question the staff’s competency. Moreover, there was no dispute that the exchange concerned work-related, and not race-related, issues. In denying the hotel’s motion for summary judgment, the court pointed out that while the phrase “you people” is ambiguous and not necessarily indicative of discrimination, it was up to a factfinder to reach its own conclusion on the GM’s state of mind at the time of the adverse employment decision.
This case should serve as a reminder to employers to review your policy against discrimination and harassment to ensure it requires that employees treat each other with respect. The policy should make clear that behavior a reasonable person would consider offensive and inappropriate in the workplace, even if it does not rise to the level of unlawful conduct, violates the respect rule. Interactions with coworkers, managers and customers should be guided by courtesy and common sense.
Further in addition to requiring all management personnel to participate in antidiscrimination training, all employees should also be required to participate in a workshop about discrimination at the start of their employment. Finally, make it clear that discrimination will not be tolerated and persons engaging in discriminatory behavior will be subject to disciplinary action, up to and including dismissal.
Court reminds public employers that standard for applicant drug testing different than for private employers
While suspicion-less drug testing of job applicants has become routine for private employers, a federal district court in Florida in Voss v City of Key West, reminded public employers that they were bound by constitutional principles in determining whether an applicant may be required to submit to drug testing. As a result of the City of Key West’s failure to carry its burden of demonstrating special need or an important governmental interest that justified its Fourth Amendment intrusion, a job applicant was granted summary judgment with respect to liability against the city after a conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test.
Drug-free workplace policy. Key West implemented a drug-free workplace policy “to eliminate alcohol and illegal drug use in the city’s workforce because of its responsibility for the safe, effective and efficient delivery of public services.” The policy provided for: (1) drug testing of all applicants for employment with the city, with refusal to submit to testing resulting in rejection of any application for employment; (2) drug testing of current employees “when the city has a reasonable suspicion that an employee is using or has used drugs or alcohol in violation of city policy;” and (3) random, unannounced drug testing for public safety employees, such as police and fire fighters, and “safety-sensitive positions,” such as commercial drivers.
In 2012, the city created a solid waste coordinator position, a highly visible marketing and planning position to develop, implement, and expand its recycling programs. The applicant applied for the position and provided the city with her driver’s license, educational history, employment history, three references, attested that she had no criminal history, and was subjected to a criminal background search. She was offered the position and was approved by the city manager. At the final stage of the application process, the applicant was asked to provide a urine specimen for a urinalysis drug screen. Rather than report for a drug screening, the applicant went to the city attorney’s office and objected to the pre-employment drug screening. Thereafter, the city offered the position to another candidate because the applicant refused to take the drug test.
Suspicion-less drug testing. The applicant filed suit challenging the application of the drug-free workplace policy to an applicant whose conditional offer of employment was withdrawn after she refused to submit to a pre-employment drug test. As an initial matter, the court observed that it is well-settled that drug testing which utilizes urinalysis is a “search” that falls within the ambit of the Fourth and Fourteenth Amendments. To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. However, the Supreme Court has recognized particularized exceptions to the main rule in situations where the government proffers a “special need” or “important governmental interest” which is furthered by the intrusion.
Governmental interest. In this instance, Key West was unable to show a special need or important governmental interest that justified its invasion of the applicant’s Fourth Amendment privacy interest, so the city’s policy was applied to her unconstitutionally.
The court noted that when it is demonstrated that a drug test has been administered without individualized suspicion of wrongdoing, the burden initially falls upon the government to show a special need or important governmental interest that justifies the Fourth Amendment intrusion. Key West argued two alternative interests to justify its policy requiring suspicion-less drug testing for applicants. First, it cited its interest in the “safe, effective and efficient delivery of public services.” In essence, the city relied upon the interest stated within the purpose of the drug-free workplace policy itself. However, the court noted that, while well-meaning, the purpose of the policy outlined a “symbolic” interest that the Supreme Court has previously rejected as a special need justifying suspicion-less drug testing.
The policy’s justification was notably lacking any indication of a concrete danger, observed the court. There was no evidence in the record showing a serious problem of drug abuse among applicants for employment with the city, or even among city employees generally, that might confirm the city’s assertion of a special need for a suspicion-less drug testing regime and justify a departure from the Fourth Amendment’s usual requirement of individualized suspicion. Accordingly, the city’s interest in the “safe, effective and efficient delivery of public services” was insufficient to justify intrusion on the applicant’s rights under the Fourth Amendment.
Not a safety-sensitive position. Second, the city argued that the solid waste coordinator position was a safety-sensitive position for two reasons: (1) the coordinator must occasionally supervise a waste transfer station; and (2) the coordinator gave presentations to school-aged children. With respect to the coordinator’s supervision of a waste transfer station, the court found the city’s argument without merit. There was no evidence that the coordinator had to be physically present at the facility while filling in for the transfer station manager. Moreover, the evidence demonstrated that the coordinator was not actively involved in safety-related duties around the transfer station. The court further noted that no evidence indicated that on-the-job intoxication was a significant problem among employees at the transfer station, or that accidents and property damage in the transfer station were attributable to alcohol or drug use.
The notion that the solid waste coordinator’s duty to make presentations to school-aged children rendered the position as safety-sensitive was also unavailing. First, the coordinator has never actually made such a presentation. Additionally, the undisputed evidence showed that the coordinator had no responsibilities to the children to whom presentations were made and that the students’ teachers would be in the classroom during the presentations. Because there was no evidence that the coordinator was entrusted with the supervision, safety, or security of children; or that he or she would have unfettered, unsupervised access to the children, the court rejected the contention that the solid waste coordinator position was a safety-sensitive position on this basis.
Finally, the court rejected the city’s argument that it should find that suspicion-less drug testing of applicants for employment, as opposed to current employees, was reasonable based on the DC Circuit’s decision in Willner v Thornburg. The applicants in Willner had consented to extensive background investigations by the FBI as candidates for Justice Department attorneys, while the applicant here was subjected only to routine reference and arrest history checks. Further, the court found no Eleventh Circuit precedent that held that government can violate a person’s rights under the Fourth Amendment so long as prior notice of the impending violation is given. Accordingly, the court found no reason to adopt the distinction urged by the city between applicants and employees.