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No absolute right to presence of union representative in investigatory hearing

August 22nd, 2017  |  Ron Miller

It has been long held under NLRB v. J. Weingarten, Inc., that an employee must be allowed to bring a union representative to any investigatory interview she is required to attend if she reasonably believes the interview might result in disciplinary action. However, the D.C. Circuit recently reminded us that there is no absolute right to a union representative in the exercise of an employee’s Weingarten rights. In Midwest Division – MMC, LLC dba Menorah Medical Center v. NLRB, the appeals court observed that when employees are not obligated to take part in an investigatory hearing, there is no requirement that they be permitted to bring a union representative if they elect to participate. As a result, the NLRB’s determination that a hospital improperly denied the request of two nurses for union representation in peer-review-committee hearings was set aside by the appeals court.

Peer-review program. Kansas law calls for hospitals to establish an internal peer-review program to monitor the quality of care furnished by their medical professionals. As required by state law, the employer formed a peer-review committee for its nursing staff. The committee examines alleged violations of the applicable standard of care by the hospital’s nurses and reports serious breaches to the state licensing agency. The peer review committee does not itself impose any form of discipline, but reports to the appropriate licensing agency if it finds grounds for disciplinary action.

Investigation of substandard conduct. This case arose out of the peer-review committee’s investigation of two nurses for substandard conduct. In May 2012, the nurses received letters from the hospital’s risk manager alleging they had exhibited unprofessional conduct. They were reminded that a “Care Level 4″ determination must be reported to the Kansas Board of Nursing for potential disciplinary action. The nurses were afforded an opportunity to address the peer review committee if they chose. Both nurses asked to be allowed a union representative before the committee, but the employer denied the requests.

In response to the employer’s actions, the union filed unfair labor practice charges against the hospital. The Board ultimately found the hospital had violated the NLRA as alleged. The employer petitioned for review of the Board’s order, while the Board sought enforcement.

Denial of representation request. The appeals court considered whether the hospital violated the NLRA by denying the nurses’ request for union representation in connection with the peer-review hearings. In this instance, the court determined the Board’s ruling that the employer violated the nurses’ Weingarten rights could not be sustained. An employee’s Weingarten right is infringed when an employer compels him to appear at an interview that may put his job in jeopardy. However, absent compulsory attendance, the right to union representation recognized in Weingarten does not arise.

Here, the nurses were given precisely that choice. The letters advising them of the charges against them expressly “afforded an opportunity” to appear before the committee. However, neither nurse was compelled to attend a committee hearing so as to trigger a right to union representation under Weingarten.

Investigatory interview. Section 8 of the NLRA imposes three obligations on employers. First, an employee must be allowed to bring a union representative to any investigatory interview she is required to attend if she reasonably believes the interview might result in disciplinary action. Second, absent an overriding need for confidentiality, an employer must furnish labor unions (upon request) information bearing on the administration of a collective bargaining agreement. Third, employees presumptively must be permitted to communicate with one another in service of their Section 7 rights.


NELP, NELA, and unions weigh in on class waivers in employer arbitration agreements

August 17th, 2017  |  Pamela Wolf

The National Employment Law Project (NELP), 10 international labor unions, and the National Employment Lawyers Association (NELA) are making their voices heard in an upcoming U.S. Supreme Court case that they say could radically tilt the legal landscape in favor of big corporations that break workplace laws. The amicus brief these groups filed on August 16, 2017, in consolidated cases, asking the Justices to rule on the lawfulness of class waivers in employer arbitration agreements, contends that employers cannot be allowed to use arbitration agreements to force workers challenging employer misconduct to give up their legally protected right to pursue legal action together as a class or group.

NELA describes itself as a non-profit professional membership organization composed of attorneys who represent workers in labor, employment, and civil rights disputes. NELP is a New York-based nationwide nonprofit organization that partners with community-based worker centers and other low-wage worker representatives to advocate for the rights of unorganized workers.

Hot-button question. In NLRB v. Murphy Oil USA, Inc. (No. 16-307), along with two other cases, Epic Systems Corporation v. Lewis (No. 16-285) and Ernst and Young LLP v. Morris (No. 16-300), the Justices will resolve the question of whether arbitration agreements that bar employees from pursuing work-related claims on a collective or class basis in any forum violate the National Labor Relations Act. In these cases, the NLRA bumps up against the Federal Arbitration Act, which favors enforcement of arbitration agreements. The cases explore what has become such a hot-button issue that the Trump Administration reversed its position under the Obama Administration when the NLRB was seeking certiorari, not only leaving the NLRB to fend for itself on the merits of the case, but actually opposing the Labor Board’s position on the class waiver issue in all of the consolidated cases.

Far-reaching impact. The case will have far-reaching and potentially devastating effects on the ability of workers to pursue legal action when employers break the law, according to NELP. The employers in the consolidated cases assert that the FAA permits them to require employees, as a condition of employment, to submit any legal dispute to private arbitration on an individual, worker-by-worker basis. This type of forced arbitration clause would prohibit every form of group legal action, including class actions, as well as any type of joint or group legal challenge, whether a case brought by two or more workers, a single worker soliciting the joinder of workers, or any other type of similar case, NELP explained.

The brief filed by NELP, the unions, and NELA underscores that the right of employees “to act in concert for mutual aid or protection” is a foundational cornerstone of national labor policy. It is also crucial to addressing the enormous disparity in economic power between individual workers and their employers.

Employees disfavored by arbitration. NELP pointed to recent research showing that arbitration can enable employers to erode enforcement of legal protections. Mandatory arbitration reduces workplace claims to “a miniscule number,” according to Jean R. Sternlight, a law professor at the University of Nevada at Las Vegas. While millions of employees are bound by forced arbitration clauses nationwide, fewer than 2,000 file arbitration claims annually. Even when workers pursue claims in arbitration, they win less frequently and obtain lower awards than workers who have access to the court system, research has shown.

Keeping bad behavior out of public eye. Another problem with forcing workers into individual arbitration proceedings is that it can make people dealing with the same issue proceed one by one, in secret proceedings outside of the public court system, NELP suggested, citing the recent sexual harassment cases at Fox News. These requirements often mean that companies are able to keep repeat violations and egregious corporate behavior out of the public eye.

“The state of forced arbitration in this country is a bald example of wealthy corporations writing the rules for the rest of us,” said NELP Executive Director Christine Owens. “In the fine print, big companies are rewriting the rules and taking away ordinary Americans’ day in court. Class actions and other types of group litigation are crucial for workers in holding big companies accountable when they break the law.”

According to Michael Rubin, a partner at the law firm Altshuler Berzon and primary author of the amicus brief, “If the Supreme Court upholds the forced waiver of employee rights through these arbitration clauses, it will spell the end of class-action employment litigation as we know it. No well-counseled employer will forgo the opportunity to both privatize and individualize potential lawsuits.”


Grievance reveals possible Hatch Act violations

August 10th, 2017  |  David Stephanides

A government lawyer was given a five-day suspension for (1)  “inappropriate conduct” towards a female supervisor, which involved loud talking or shouting that was deemed disrespectful and (2) inappropriate conduct regarding use of government property. The lawyer filed a grievance (U.S. Department of Education and AFGE. 17-2 ARB ¶6945. Thomas Coyne).

The hearing was scheduled for 9 am one December morning in 2014. It was at this point that the grievance took a strange turn. Neither party showed up for the hearing. When the arbitrator called them, they said that they were in an adjacent room and would be there shortly. When they arrived, they told the arbitrator that the lawyer and the supervisor had resolved their differences on issue #1 and that he had been reinstated. They jointly informed the arbitrator of their intent to withdraw the grievance. They only briefly mentioned issue #2, noting that a report had been made and that the employer was considering whether to pursue criminal charges.

The arbitrator, however, refused to accept their settlement and dismiss the grievance. Even though no testimony was ever given at the hearing, the parties had submitted a series of exhibits prior to the hearing. Some of those exhibits revealed that the charge underlying issue #2 was the use of a government computer to send emails prior to the 2008 presidential election extolling one of the candidates, possibly in violation of the Hatch Act. More than 800 government employees had apparently sent email messages to school superintendents reminding them that they could lose public funding if the other candidate won. The arbitrator’s justification for refusing to dismiss the grievance was found in the “heavy damages to the general public caused by Issue item 2.” The arbitrator also characterized the joint effort to dismiss a grievance based on an argument between employees as a conspiracy to keep the real issue secret until after the statute of limitations had expired. It is reasonable to presume, the arbitrator said, that the results of the 2008 and 2012 national elections would have been different had criminal charges been made against these employees.

Manipulating a free national election is a crime, he said. If these acts go unpunished, government employees at other agencies will feel free to manipulate future elections. Democracy itself is at risk. As a result, the arbitrator denied the grievance based on issue #1. As for issue #2, he ordered the employer to terminate the lawyer and any other employees who manipulated the election, and he ordered the employer to deny them any benefits, including their pensions. In addition, he ordered prison terms and fines (times and amounts to be determined) for any person found in the exhibit to have violated the Hatch Act as a result of the employer’s internal investigation.


Bill protecting pregnant workers’ rights enacted in Massachusetts

August 3rd, 2017  |  Deborah Hammonds

Massachusetts Governor Charlie Baker recently signed H. 3680, “An Act Establishing the Massachusetts Pregnant Workers Fairness Act,” a bipartisan bill to extend protections to pregnant workers in the Commonwealth. The legislation will prohibit workplace and hiring discrimination related to pregnancy and nursing, and require employers to provide reasonable accommodations for expectant and new mothers in the workplace. This includes access to less strenuous workloads, altered work schedules, time off with or without pay and private nursing space. The law closes gaps in federal law for employers of six or more.

“This bipartisan legislation extends critical protections to women in the workplace and I thank the Legislature for their collaboration with advocates from both the women’s health and business communities,” said Governor Baker. “These provisions are important to expectant and working moms supporting their families and raising healthy children.”

Governor Baker was joined by Lieutenant Governor Karyn Polito and members of the state’s legislature at the signing ceremony at the State House on July 27.

As a working mom, I know how important it is to balance job responsibilities and family life to support our kids,” said Lieutenant Governor Karyn Polito. “Ensuring women in the workplace raising their children have access to these protections is important to the strength and safety of our economy, families and communities.”

“No expecting mother should have to choose between a healthy pregnancy and a paycheck,” said Massachusetts Senate President Stan Rosenberg. “This legislation would ensure that women’s medical needs are addressed without imposing undue burden on employers throughout Massachusetts.”

Representative David Rogers said, “Today, once again, Massachusetts has acted boldly to advance the cause of civil rights, women’s rights, and equal opportunity.  The Pregnant Workers Fairness Act, a bill I introduced, makes clear that women seeking reasonable assistance from their employers for certain conditions or needs related to their pregnancy must be treated fairly. I thank Speaker DeLeo for his leadership, the ninety-nine of my House colleagues who co-sponsored this legislation and, most of all, the many courageous women who stepped forward to tell their stories while the bill was under consideration. Together today we send a powerful message in support of equal opportunity in our Commonwealth.  And we must be mindful of the moment. It is particularly heartening that Massachusetts is taking this action at a time when many in our national government seem determined to go in the wrong direction on women’s rights.”


DOJ and EEOC battle in the Second Circuit over sexual orientation discrimination

July 27th, 2017  |  Pamela Wolf

On the same day that President Trump announced via Twitter that transgendered individuals would no longer be permitted to serve in the U.S. military, the Department of Justice filed an amicus brief in the Second Circuit asserting that Title VII does not include protection against discrimination based on sexual orientation. The move is perhaps another sign of the Trump Administration’s confused approach to LGBTQ rights—negotiating the space between Trump’s January 2017 promise of protection and the demands of a conservative base—given that earlier in the same case, the EEOC filed an amicus brief contending that Title VII’s ban on discrimination based on sex does extend to sexual orientation.

The controversy also may mark a trend of independent federal agencies refusing to toe the line on the Trump Administration’s agenda.

In Zarda v. Altitude Express dba Skydive Long Island, the Second Circuit will hold an en banc rehearing of a three-judge panel’s decision that would not reconsider the employee’s request that it overturn Simonton v. Runyon, a 2000 decision holding that Title VII does not prohibit discrimination based on sexual orientation. Instead, the appeals court adhered to its position in the March 2016 ruling in Christiansen v. Omnicom Group, Inc. that Simonton can only be overturned by the entire court sitting en banc. As such, it held that a gay skydiving instructor had no recourse under Title VII after allegedly being fired based on his sexual orientation. The Second Circuit granted the petition for en banc rehearing on May 25. The case is set for oral argument September 26, 2017.

DOJ sees narrow Title VII scope. The two federal agencies are at loggerheads as to the scope of Title VII’s prohibition against employment discrimination based on sex. To take the wind out of the EEOC’s sails, the DOJ says that while the EEOC enforces Title VII as to private employers, the United States, through the Attorney General, enforces Title VII against state and local governments, and is itself subject to the statute in its capacity as the nation’s largest employer. The EEOC, the DOJ stressed, is not speaking for the United States and is not entitled to deference other than the Commission’s power to persuade.

The Justice Department argues that none of the theories advanced by the EEOC, and the Seventh Circuit in its Hively v. Ivy Tech Community College of Indiana, can “overcome Title VII’s plain text” and the longstanding precedent of the Second Circuit and other courts. “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect.”

Congress, through its actions and inactions, has made clear that Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination, according to the DOJ. “Other statutes and rules may prohibit such discrimination, but Title VII does not do so as a matter of law, and whether it should do so as a matter of policy remains a question for Congress to decide.”

But not so fast . . . In a brief filed a month earlier, on June 23 the EEOC noted that it is the “primary agency” charged with interpreting Title VII. The Commission argues that because claims of sexual orientation discrimination “necessarily involve impermissible consideration of a plaintiff’s sex, gender-based associational discrimination, and sex stereotyping,” they fall “squarely within Title VII’s prohibition against discrimination on the basis of sex.”

The EEOC observed that 17 years ago, in Simonton v. Runyon, the Second Circuit concluded that “Title VII does not prohibit harassment or discrimination because of sexual orientation.” But in the intervening years, the EEOC and an increasing number of courts, including the Seventh Circuit sitting en banc, have analyzed the issue and reached the opposite conclusion. Those courts repeatedly focused on three arguments about sexual orientation discrimination, none of which were addressed in Simonton or Dawson v. Bumble & Bumble (2nd Cir. 2005): that sexual orientation discrimination (1) involves impermissible sex-based considerations, (2) amounts to gender-based associational discrimination, and (3) relies on sex stereotyping. For each of these reasons, sexual orientation discrimination is sex discrimination in violation of the Title VII, according to the EEOC.

The Commission offered additional reasons to overrule Simonton and its progeny: The primary authorities on which that case relied are no longer followed, and as many courts have concluded, the line the Second Circuit drew in Simonton and Dawson between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results. Therefore, the EEOC asserted, both precedent and practicality dictate overruling Simonton.

Trump Administration vs. independent agencies. Notably, the EEOC is an independent federal agency that, presumably, is at liberty to follow its own interpretation of Title VII—at least until the Commission’s membership tilts the other direction. This is not the first time the Trump Administration has taken a position adverse to that of an independent agency.

In June, the National Labor Relations Board found itself in a similar posture before the Supreme Court. In NLRB v. Murphy Oil USA, Inc. (No. 16-307), where the Board challenges the lawfulness of class arbitration waivers in employment agreements, the DOJ not only refused to represent the NLRB on the merits, it filed an amicus brief opposing the Board’s position and reversing its own stance in the petition for certiorari (see OJ switches sides in NLRB class action waiver cases, June 19, 2017). The DOJ also argued against the Board’s take in the two cases consolidated with Murphy Oil in the Court’s grant of certiorari, Epic Systems Corporation v. Lewis (No. 16-285) and Ernst and Young LLP v. Morris (No. 16-300).

The case, Zarda v. Altitude Express dba Skydive Long Island, is No. 15-3775.