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NLRB’s new election rules not favoring unions

March 8th, 2016  |  David Stephanides  |  Add a Comment

The National Labor Relations Board has released comparison statistics for the first three quarters following implementation of its controversial revised election rules governing representation-case procedures, which became effective April 14, 2015. Although many believed the new “ambush” election rules would tilt in favor of unions, the statistics, at least at this point, do not bear out that concern. The Board’s union representation data provides a comparison between the period April 14, 2015, through January 14, 2016, and the same nine-month period the year before.

The Board noted that the new representation case procedure rules “were designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases, simplify representation-case procedures, codify best practices, and make them more transparent and uniform across regions.” Addressing what it saw as discrete, specifically identified problems, the updated rules were aimed at streamlining Board processes; increasing transparency and uniformity across regions; eliminating or reducing unnecessary litigation, duplication, and delay; and modernizing the Board’s rules on documents and communications in light of current communications technology.

Petitions filed. The statistics show that during the 9-month period following implementation of the new rules, fewer petitions were filed (2012) compared to the same period the previous year (2097). However, there were more petitions filed seeking certification of a representative (RC) after the new rules were implemented (1624) compared to the year before (1608). During the three quarters following the effective date of the new rules compared to the same period the prior year there were fewer certification petitions (RD) (255 versus 334); fewer majority support certification petitions (RM) (40 compared to 36); and fewer unit clarification petitions (UC) (54 versus 57).

Decreased time between filing and election. During the three quarters following implementation of the new rules, the time between the filing of a petition and the election decreased for all types of election cases. The median number of days between the filing of the petition and the election after the new rules applied compared to the same period before the new rules was 24 versus 38 for RC petitions; 25 versus 37 for RD petitions; and 28 versus 38 for RM petitions.

The median number of days between the filing of a petition and a pre-election hearing was also shorter (10) during the three-quarter period after the new rules were implemented compared to the same period the previous year (13). The time between the petition filing and the election was also shorter where there was an election agreement (23 versus 38) and even more dramatically so when there was a directed election (34 compared to 66). The median number of days between the filing of a petition and certification was also reduced after the new rules were implemented (35) compared to the same 9-month period the year before (49).

Union win rates. Interestingly, the union win rates were not much impacted by the new representation case procedure rules, with the overall union win rate dropping slightly during the three quarters after the new rules were implemented compared to the same period the year before (64 percent versus 65 percent, respectively). As to case type, the union win rate was slightly lower in RC cases after the new rules compared to before (68 percent versus 70 percent). The union win rates remained the same after the new rules were implemented compared to the same period the year before for RD cases (39 percent) and RM cases (29 percent).

Other developments. The Board posted two other notable statistics. First, the election agreement rate was slightly higher after the new rules were effective compared to the same nine-month period the year before (92 percent versus 91 percent). Second, the number of petitions that were blocked by unfair labor practice charges was substantially reduced after the new rules applied (82 compared to 144).

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EEOC files first sexual orientation discrimination lawsuits

March 1st, 2016  |  Pamela Wolf  |  Add a Comment

By Pamela Wolf, J.D.

The EEOC announced the filing of its first two Title VII sex discrimination cases based on sexual orientation. On March 1, the agency filed a lawsuit in the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, filed a complaint in the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA. The commission has been working for several years toward clearly establishing that sexual orientation discrimination offends Title VII. In both cases, the EEOC is seeking injunctive relief and compensatory and punitive damages.

“With the filing of these two suits, EEOC is continuing to solidify its commitment to ensuring that individuals are not discriminated against in workplaces because of their sexual orientation,” explained EEOC General Counsel David Lopez. “While some federal courts have begun to recognize this right under Title VII, it is critical that all courts do so.”

Scott Medical Health Center. The EEOC asserts that Scott Medical Health Center subjected a gay male employee to harassment because of his sexual orientation. The employee was a telemarketer. His manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life, according to the complaint, including regularly calling him “fag,” “faggot,” “f***ing faggot,” “queer,” and saying “f***ing queer can’t do your job.” The manager allegedly made these highly offensive comments to the employee at least three to four time a week.

The employee complained to the clinic director, but the director purportedly said that the manager was “just doing his job,” and refused to take any action to stop the harassment, the EEOC said. After enduring weeks of the manager’s offensive comments, the employee allegedly quit rather than endure further harassment.

IFCO Systems. In its suit against IFCO Systems, the EEOC asserts that a lesbian forklift operator was harassed by her supervisor because of her sexual orientation. Soon after she was hired for the first shift, a supervisor asked her to start working the night shift, which she agree to do to earn extra money, according to the complaint.

Purportedly, the supervisor soon began making comments about the employee’s sexual orientation and appearance on a weekly basis, such as “I want to turn you back into a woman”; “I want you to like men again”; “You would look good in a dress”; “Are you a girl or a man;” and “You don’t have any breasts.” The complaint alleges that the supervisor once blew a kiss at the employee and circled his tongue at her in a suggestive manner.

The employee purportedly complained to the general manager and called the employee hotline about the harassment. After unsuccessfully pressing the employee to resign, IFCO fired her just a few days later in retaliation for making the complaints, according to the EEOC.

EEOC leading on sexual orientation discrimination. As the federal law enforcement agency charged with interpreting and enforcing Title VII, the EEOC has concluded that harassment and other discrimination because of sexual orientation is prohibited sex discrimination. In a July 2015 federal sector decision, Baldwin v. Department of Transportation, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. The commission explained the reasons why Title VII’s prohibition against sex discrimination includes discrimination because of sexual orientation: (1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex, because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as their marital and other personal relationships.

Addressing emerging and developing issues—especially coverage of lesbian, gay, bisexual, and transgender individuals under Title VII’s sex discrimination provisions–is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP). The agency has posted materials on its website relating to coverage under Title VII for LGBT individuals. In addition, in June 2015, the Commission, in coordination with the Office of Personnel Management, Office of Special Counsel, and the Merit Systems Protection Board, developed a guide for federal agencies on addressing sexual orientation and gender identity discrimination in federal civilian employment.

EEOC v. Scott Medical Center is case No. 2:16-cv-00225-CB; EEOC v. Pallet Companies is case No. 1:16-cv-00595-RDB.

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BMI, ADA and disability discrimination

February 25th, 2016  |  Kathy Kapusta  |  Add a Comment

Body Mass Index, or BMI, is a height-to-weight ratio calculated by dividing body weight in kilograms by height in meters squared. The most common way to find out whether you’re overweight or obese, at least according to the National Institutes of Health, is to figure out your BMI, which estimates body fat and gauges your risk for diseases that occur with more body fat.

While this might be a useful tool for the medical profession, is it something that can or should be used by employers? In two recent decisions issued less than a month apart, federal courts in Washington and Nebraska have provided some interesting insight.

Truck driver required to submit to sleep study based on BMI. In the first of those decisions, a federal court in Nebraska found that an over-the-road trucking company that required all of its drivers with a BMI of 33 or greater to complete a sleep study did not violate the ADA when it placed a driver who refused to undergo the study on “out of service” status. After acknowledging the relatively few cases analyzing broadly applicable medical-examination policies under the ADA, the court found the policy was job-related, vital to the employer’s business, and no broader or intrusive than necessary.

Because of his size. After the company began rolling out its sleep apnea policy, the employee’s manager asked if he used a CPAP machine, a medical device used to treat obstructive sleep apnea (OSA). The manager also scheduled the 6’5,” almost 300-pound employee for a sleep study “because of his size,” requiring him to take the study as a condition of continued employment.

Out of service. Although his medical provider suggested it was not necessary for him to have the sleep study, the company placed him on “out of service” status when he refused to show for his appointment. He subsequently sued, alleging that his employer discriminated against him under the ADA by requiring him, and all other truck drivers with a BMI of 33 or above, to undergo a sleep study as a condition of continued employment; by asking him if he used a CPAP to treat OSA; and by regarding him as having an impairment.

Medical exam. The ADA provides that “A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Noting that this provision applies to all employees, whether or not the employee has an actual disability, the court observed that most case law interpreting this provision involves medical testing of employees who have exhibited symptoms or behaviors that cause their employers to question their fitness to perform their jobs. Here however, the employer had a broad, mandated medical-examination policy applicable to a defined class of employees—those with a BMI of 33 or greater.

Job-related. In finding the policy to be job-related, the court observed that physician witnesses for both parties established that BMI is strongly associated with OSA and that OSA would qualify as a respiratory dysfunction under applicable DOT regulations. The company’s sleep apnea policy was heavily related to the ability of its drivers to lawfully continue to drive under DOT regulations and was thus job-related under ADA.

Business necessity. Further, the company had a vital interest in maintaining the safety of its drivers, the cargo it carried for its customers, and the public, observed the court, pointing out that the potential danger posed by a truck driver asleep at the wheel “is obvious and undisputed.” Noting evidence that OSA can cause driver fatigue, that the biggest predictive factor of OSA is obesity, that obesity can be objectively measured by calculating one’s BMI, and that a sleep study is the “gold standard” for diagnosing OSA, the court found the company’s sleep apnea policy and related inquiries served to directly confirm or rule out OSA for a narrowly defined class of employees who met an objective BMI standard. Thus, the policy was not broader or more intrusive than necessary to achieve its business necessity of keeping its drivers, cargo, and the public safe.

Obese applicant denied job based on BMI. Although the second decision arose under the Washington Law Against Discrimination, because it was silent on whether and under what circumstances obesity can be considered an impairment, the federal district court in Washington looked to the ADA, and the regulations and case law interpreting it, for guidance.

The court found that a plaintiff alleging disability bias based on obesity must show that the obesity is caused by a physiological condition or disorder, or that the defendant perceived it as having such a cause. Because an applicant whose job offer was rescinded based on his high BMI showed only that the prospective employer perceived him as obese and as being prone to developing certain physiological disorders in the future, the court granted summary judgment against his disability discrimination claim.

The plaintiff was conditionally offered a job as an electronic technician with a railroad. When a medical exam revealed a BMI of 41.3, the railroad’s medical officer told him he could not determine his medical qualification for the position due to significant health and safety risks associated with extreme obesity. He was also told he could “permit further evaluation” of his “health status and risks” by submitting a sleep study, a medical report documenting various “cardiac risk factors,” an exercise tolerance test, hip and waist measurements performed by a physician’s office or athletic facility, and the complete VA disability determination. Alternatively, he would be considered for the job if he lost 10 percent of his weight and maintained that weight loss for at least six months. He subsequently sued, asserting disability discrimination claims under the WLAD.

Obesity. While the majority of courts that have addressed the question of  whether and under what circumstances obesity qualifies as a disability under the ADA have found that obesity is a disability only when it is the result of a physiological condition or disorder, others have concluded that obesity is a disability when it stems from a physiological disorder or condition, or when it is sufficiently extreme, such as when the plaintiff’s weight is (or is perceived as being) 100 percent greater than the norm. Still others have suggested that obesity discrimination claims may lie when the employer believes the plaintiff’s weight constitutes a disability.

Finding the majority position most persuasive, the court noted that the EEOC’s guidance accompanying the ADA regulations explains that “It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments,” and that “the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.”

Perceived as “physiological” obesity? As to the plaintiff’s suggestion that an employer may perceive an obese applicant as disabled if it believes the applicant’s weight constitutes an impairment, the court found that the railroad could not perceive him as disabled unless it perceived him as suffering from something that was a “physiological disorder or condition” within the meaning of the statute. If it instead perceived him as having something that was merely a characteristic under the statute, it was irrelevant that it believed such characteristic affected his bodily systems and made him prone to developing future disorders.

Believing that the Washington Supreme Court would follow the majority approach as more consistent with the statutory and regulatory language of the ADA, and that language was substantially the same in all relevant respects as corresponding language in the WLAD, the court found that the plaintiff’s claim failed. He did not show that his elevated BMI was caused by a physiological condition or disorder, or that the railroad perceived his BMI as stemming from either source.

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NCD releases final report in series on ACA and people with disabilities

February 24th, 2016  |  Deborah Hammonds  |  Add a Comment

Earlier this month, the National Council on Disability (NCD) released its final report of a three-part series on people with disabilities and the Patient Protection and Affordable Care Act (ACA), also known as Obamacare. The report, Monitoring and Enforcing the Affordable Care Act for People with Disabilities, analyzes key legal safeguards in ACA implementation regulations that can help people with disabilities secure essential care and supports.

Recognizing some of the steps taken by the U.S. Department of Health and Human Services Centers for Medicare and Medicaid to assist members of the public in navigating the relatively new law and its proposed rules, the report also includes questions in each chapter designed to raise awareness about potential options and topics to consider after the rule becomes final. In addition, the report outlines legal duties; identifies those responsible for fulfilling those duties; and explores some potential avenues for redress where applicable.

NCD states that its goal for this report is to flag issues for monitoring by the disability community to ensure that people with disabilities fully share in ACA’s promised gains while avoiding potential risks posed by ACA. The report is designed to provide a starting point for people with disabilities and their advocates, facilitating in the process of spotting issues that may warrant further work. The agency also notes that much of its analysis in the report is necessarily provisional as many key ACA provisions have not received judicial interpretation. Many important regulations remain subject to revision.

The full report is available on NCD’s website. The first two reports in the series, Implementing the Affordable Care Act (ACA): A Roadmap for People with Disabilities and The Impact of the Affordable Care Act: A 2015 Status Report, are also available on the agency’s website, www.ncd.gov.

Submitted to President Obama on February 2, the report is the result of NCD’s cooperative agreement with the Urban Institute in NCD’s study called “The Affordable Care Act and What It Means for People with Disabilities.” NCD is an independent federal agency charged with advising the President, Congress, and other federal agencies regarding policies, programs, practices, and procedures that affect people with disabilities.

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Nino and me

February 18th, 2016  |  Lisa Milam-Perez  |  Add a Comment

By Lisa Milam-Perez, J.D.

Ah, I admit it. Justice Scalia’s passing has saddened me.

Nino first stirred my passions in law school with those magnificent dissents. I relished the reasoning, the language, the snark, even as I disagreed so vehemently with the premise, the politics. Plus, he was a character. So bombastic, so brazen, so Italian. I was smitten. I’ve always had a weakness for the bad boy, I’d say, in a sheepish effort to justify my misplaced ardor. Friends would excoriate me, plead with me, try to talk sense into me. “You just don’t know him like I do.”

I visited the Supreme Court in 1998. By sheer coincidence, it was oral argument day in Faragher and Ellerth. Of course, these two gigantic sexual harassment cases drew tremendous attention at the time, and an unwieldy throng descended upon the High Court that day. Consequently, visitors were shuffled into the viewing chambers for mere two-minute stints, then out. My husband laughed, bemused, as I strained my neck for at least a passing glimpse of my beloved Nino.

Two years later, Bush v. Gore threw cold water on the romance. It was the first High Court ruling in my lifetime in which I was viscerally present, deeply conscious of the real-life consequences of the lofty opinions emanating from those hallowed halls. Their words can devastate, no matter how artful their prose. I’m far more jaded now. And, frankly, Nino turned more truculent, cranky, and out of touch. He was bad for me, I knew. Bad for America, as I saw it.

Occasionally thereafter, though, I’d read one of his biting dissents and smile, laugh, enjoy a passing twinge of remembrance. Yes, what we once had …

I remembered anew as I read the statement issued by Justice Ginsburg, one of the Court’s staunchest progressives, of course and, famously, one of Justice Scalia’s closest friends:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

Everyone has moved on, focused now on the political machinations that follow his death and, closer to home, contemplating the labor and employment implications. Here are two particularly astute analyses:

As for me? I’ll take solace in Justice Kagan’s dissents; she seems to be emerging as Justice Scalia’s rhetorical, if not philosophical successor. Aside from a few disheartening positions in wage-hour cases, though, the romantic tension of strenuously opposing viewpoints just isn’t there. Sigh. But regardless of who will replace Justice Scalia—and when—the Supreme Court will be a far less entertaining place to visit.

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