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ARB denies JPMorgan Chase’s request for interlocutory review of ALJ’s refusal to dismiss OFCCP claims of sex bias in pay practices

October 30th, 2017  |  Cynthia L. Hackerott

Concluding that there were no exceptional circumstances warranting mandamus or other means of interlocutory review, a DOL Administrative Review Board (ARB or Board) panel denied JPMorgan Chase & Co.’s petition for interlocutory review of an ALJ’s refusal to dismiss an action in which the OFCCP alleges that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts. The panel found that JPMorgan failed to establish any basis for departing from the Board’s general rule against accepting interlocutory appeals. (OFCCP v. JPMorgan Chase & Co, October 5, 2017, slip op)

Pay bias allegations. In January 2017, the OFCCP filed a complaint with the DOL’s Office of Administrative Law Judges (OALJ) alleging that the bank discriminated against female employees in certain professional positions by compensating them less than their male counterparts (DOL ALJ Case No 2017-OFC-007). As the result of a compliance review, the OFCCP concluded that, since at least May 15, 2012, JPMorgan paid at least 93 females employed in Application Developer Lead II, Application Developer Lead V, Project Manager and Technology Director positions within its Investment Bank, Technology & Market Strategies unit, less than comparable men employed in these same positions. This compensation disparity remained after adjusting for differences in legitimate compensation-determining factors, the agency maintains in a January 18, 2017 press release announcing the suit.

The OFCCP also claims that JPMorgan failed to evaluate the compensation systems applicable to these employees and that the bank had an “insufficient affirmative action plan” in that it failed to perform the type of in-depth analysis of its employment practices required by Executive Order (EO) 11246 and its implementing regulations.

The ALJ denied JPMorgan’s motion to dismiss the administrative complaint for failure to state a claim, rejecting the bank’s assertion that the plausibility standard for stating a claim under Fed. R. Civ. P. 8 as set forth in the U.S. Supreme Court’s rulings in Ashcroft v. Iqbal (2009) and Bell Atlantic Corp. v. Twombly, (2007) (Iqbal/Twombly)applies to OFCCP administrative complaints and was not satisfied by the complaint in this case. In addition, the ALJ denied JPMorgan’s motion for reconsideration as well as  its subsequent request to certify the issue for interlocutory review by the ARB as provided by 28 U.S.C. § 1292(b). Nevertheless, JPMorgan filed a petition for interlocutory review with the ARB.

Regulatory mechanism for interlocutory review lacking. As a preliminary matter, the ARB panel found that the OFCCP’s regulations at 41 C.F.R. Part 60-30 (“Rules of Practice for Administrative Proceedings to Enforce Equal Opportunity under Executive Order 11246”), and the cases interpreting them (including the Seventh Circuit’s 1978 ruling in Uniroyal, Inc. v. Marshall and the Secretary’s subsequent ruling in U.S. Department of the Treasury v. Harris Trust & Savings Bank, OALJ No. 1978-OFCCP-002, May 10, 1979), do not provide a mechanism for interlocutory review in EO 11246 administrative proceedings. The regulations in two separate locations41 C.F.R. § 60-30.19(b) and 41 C.F.R. § 60-30.28—provide for the filing of exceptions with the ARB, but only after receipt of the ALJ’s recommended decision.

However, the ARB panel explained that the Secretary of Labor has delegated to the Board, via Secretary’s Order No. 02-2012 § 5(c)(13), the authority to issue final agency decisions upon appeals of decisions of DOL ALJs in cases arising under EO 11246. That order explicitly provides that the ARB may accept interlocutory appeals in “exceptional” circumstances, but it is not their general practice to accept petitions for review of non-final dispositions issued by an ALJ. The Secretary of Labor and the Board have held many times that interlocutory appeals are generally disfavored and that there is a strong policy against piecemeal appeals, the ARB panel here noted. Importantly, the Secretary of Labor noted in the 1993 ruling in OFCCP v. Honeywell, Inc. (OALJ No. 1977-OFCCP-003; June 2, 1993) that the Secretary has never reconciled the language of the regulations with Secretary’s Order No. 02-2012, the ARB panel pointed out.

“Exceptional circumstances” also lacking. Therefore, the ARB assessed whether there were any “exceptional circumstances” warranting interlocutory review under its delegated authority. When a party seeks interlocutory review of an ALJ’s non-final order, the ARB has generally followed one or more of three different approaches for determining what might constitute “exceptional circumstances.”  Here, the court analyzed the three most common approaches, as well a fourth approach advanced by JPMorgan—a writ of mandamus.

The first approach is contained in the interlocutory review procedures at 28 U.S.C. Section 1292(b), which provides for certification of issues involving a controlling question of law as to which there is substantial ground for difference of opinion, an immediate appeal of which would materially advance the ultimate termination of the litigation. But the bank conceded that because the ALJ’s order denying its motion to certify the question of law it raised (failure to state a claim) was not the type of interlocutory order from which an appeal may not be taken pursuant to Section 1292(b).

JPMorgan did not address or argue as to the second approach, consideration of an interlocutory order meeting the ‘collateral order’ exception to finality that the Supreme Court recognized in Cohen v. Beneficial Indus. Loan Corp. (1949). The ARB assumed the bank did not advance this approach because the ALJ’s denial of its motion to dismiss does not involve a collateral order given that the order at issue here was plainly is not separate from the merits.

The third approach was derived from the Secretary of Labor’s ruling in Honeywell, Inc., where the Secretary accepted and ruled on an interlocutory appeal in an EO 11246 case because that unusual case involved many threshold procedural and substantive issues of interpretation of EO 11246 and the parties did not object to the Secretary’s review of the ALJ’s order as an interlocutory appeal. The ARB panel also noted that the Secretary reviewed the interlocutory appeal in Honeywell because it involved threshold legal issues the resolution of which would encourage the parties to engage in voluntary mediation. That was not the case here, the ARB panel stated, noting further that the OFCCP does object to this interlocutory appeal.

Turning to the approach advanced by JPMorgan, the ARB panel first noted that the Secretary’s Order (cited above) delegating authority to the ARB to issue final agency decisions in cases arising under EO 112463 does not specifically delegate mandamus authority to the Board, and the ARB has thus far declined to decide the issue or recognize such authority.

Mandamus authority, even if available, not warranted. Even if mandamus authority were available, the ARB panel found that JPMorgan failed to demonstrate that such review was warranted here. The bank had not demonstrated that the circumstances existed in this case to satisfy the criteria set forth in the U.S. Supreme Court’s 2004 ruling in Cheney v. U.S. District Court for the District of Columbia to warrant interlocutory review through a writ of mandamus. In Cheney, the High Court held that the party seeking such review must meet three criteria: (1) it must have no other adequate means to attain the desired relief,  (2) it must show that its right to issuance of the writ is “‘clear and indisputable,’” and (3) the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Since the ALJ denied JPMorgan’s request to certify the issue for interlocutory review, the third criteria was not applicable here. As to the first criteria, although the bank asserted that there is no alternative means to address the ALJ’s denial of its motion to dismiss for a failure to state a claim given that an appeal after discovery and an adjudication on the merits would be futile, it is not uncommon for courts to deny interlocutory review of motions to dismiss, the ARB observed. Second, JPMorgan failed to show that it has a “clear and indisputable” right to issuance of the writ. The ALJ’s rationale in denying the bank’s motion to dismissthat the regulations at 41 C.F.R. § 60-30.5(b) provide an applicable pleading standard for OFCCP complaints filed pursuant to EO 11246was a reasonable interpretation, the ARB panel found. [Wolters Kluwer note: the standard at 41 C.F.R. § 60-30.5(b) is comparable to the “fair notice” standard for pleading in civil rights sanctioned by the U.S. Supreme Court in its 2002 ruling in Swierkiewicz v Sorema NA].

Accordingly, the ARB panel denied JPMorgan’s petition for interlocutory review remanded the case back to the ALJ for further proceedings.

The green-eyed monster at work: when does jealousy become unlawful discrimination?

October 25th, 2017  |  Lorene Park

By Lorene D. Park, J.D.

What happens when a good employee, through no fault of her own, is fired because her boss’s jealous wife doesn’t want him working with her? Is that sex discrimination? The answer is that it depends on whether the jealousy is really because of gender. Arguably, the only reason for the jealousy is because of the potential for a romantic relationship due to the employee’s status as a member of the opposite sex, but courts don’t necessarily see it this way. In some cases, it simply depends on whether it was the employee in particular who was the focus of the jealousy (due to a friendship or other consensual relationship) or whether all individuals of the same gender would have also been targeted. To those courts, only the latter case would be unlawful discrimination.

Wife jealous of all women. For example, in an October 2, 2017 decision, a federal court in Pennsylvania refused to dismiss Title VII and state law claims by a trucking company’s female service operations manager who was treated differently than male colleagues and fired because the company president’s wife did not want him working with women. The president had avoided eye contact and excluded the plaintiff from meetings and directed her subordinates to relay important information to her. She was also told that she was no longer allowed to go into the president’s office or to address him directly in the workplace, including by email.

The employer claimed it could lawfully fire an employee due to spousal jealousy, but the court was unconvinced. It noted that neither the Third Circuit nor the U.S. Supreme Court have spoken directly on this issue, but other courts that have found spousal jealousy to be a lawful reason for firing have done so “only where the spouse was jealous of a particular individual, not where the spouse was jealous of an entire sex.” With this in mind, the court concluded that jealousy is not a lawful explanation for an adverse employment action if it encompasses the entire gender, as appeared to be the case here (Sztroin v. PennWest Industrial Truck, LLC).

Based on relationship or gender? This is not the only court that has appeared to distinguish between an employment decision based on a personal relationship (e.g., jealous of a particular individual) and a decision truly based on gender. For example, in an older case out of Iowa, a long-time dental hygienist developed a friendship with the dentist, who she considered to be a father figure, and they would exchange texts after hours (mostly about their kids). However, there was some indication that he was attracted to her (he complained to her that her clothing was too tight and “distracting”) and after his wife became jealous, the hygienist was fired. Affirming summary judgment against her sex discrimination claim, the state’s highest court concluded that it was not unlawful gender discrimination to fire the hygienist because the wife “unfairly or not, viewed her as a threat to her marriage.” The court noted that the employee was replaced by a female and that all of the dentist’s assistants were female, only the plaintiff was the subject of the wife’s jealousy (Nelson v. James H. Knight DDS ).

Sexual attraction to “cute” employee is gender based. In other cases, courts have found that jealousy directed at a particular individual is gender-based when it involves sexual attraction. For example, a New York appeals court held that firing an employee due to jealousy by the boss’s wife could be actionable under state and city law. The husband and wife owned a chiropractic and wellness company and the plaintiff was a yoga and massage therapist. Though the boss praised her performance and she claimed their relationship was “purely professional,” he also allegedly told her that his wife might become jealous because she was “too cute.” About four months later, the wife sent the plaintiff a text message in the middle of the night stating, “You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you.” Later that morning, she received an email from the husband stating that she was fired.

Reversing the dismissal of her sex discrimination claim, the state appeals court found that she alleged facts from which it could be inferred that the husband and wife were motivated to fire her by the wife’s jealousy and belief that her husband was sexually attracted to the plaintiff. This was related to gender, noted the court, and “a discharge is actionable if the spouse urged the discharge for unlawful, gender-related reasons” (Edwards v. Nicolai).

But for her status as a woman . . . It’s hard not to compare these jealousy cases to other contexts, in which courts must decide if an atypical fact pattern involves discrimination “because of” gender. In one recent case, an employee’s supervisor, who was also the CEO’s mother, repeatedly pressured the employee to marry the CEO and became angry when she married someone else. Thereafter, she criticized the employee’s performance and spread rumors about her. Based on this, a reasonable jury could find that, “but for her status as a woman,” the employee would not have been subjected to the offensive conduct, ruled a federal court in Maryland, denying the employer’s motion for summary judgment (Allen v. TV One, LLC).

Had the courts in the jealousy cases applied the same reasoning, the results of some might have been different. But for the female employees’ status as women, their bosses’ wives would not have been jealous and they would not have been fired, right? Food for thought.

So when is jealousy-based decisionmaking unlawful? For now, and depending on the jurisdiction of course, courts are more likely to find that adverse actions prompted by jealous decisionmakers or spouses constitute unlawful sex discrimination if the jealousy is directed at an entire gender. They are also more likely to find discrimination if there is evidence of sexual attraction, even if there are no allegations of sexual harassment or quid pro quo demands.

The heartbreaking sadness of sexual harassment

October 18th, 2017  |  Joy Waltemath

By Joy P. Waltemath, J.D.

Amazon Studios executive Roy Price. Harvey Weinstein. Before that Bill O’Reilly. Roger Ailes. The news is all about sexual harassment allegations in tech, in Hollywood, among the movers and shakers in this world. #MeToo (a hashtag for women who have been sexually harassed or assaulted) currently is trending on Twitter (although I’ve read that as a movement, it’s been around for about a decade). Sexual harassment is again getting its 15 minutes of fame; it’s not the first time.

I last blogged about sexual harassment in April, back when the Bill O’Reilly allegations were receiving significant media attention. But what I’ve been thinking about lately is not the viral outrage, nor the media attention, that is currently on display, but instead a small, sad case that involved two women working at a hotel in a central Florida city not known for tourism.

One woman was Filipino; she worked in housekeeping. The other was white; she worked the hotel’s breakfast bar. Both were hired and ultimately fired by the hotel’s general manager, who also held an ownership interest in the business. The reason I mention the race/national origin of these women is that the general manager, an Indian male, apparently believed it was important.

The housekeeper. The women’s sexual harassment allegations withstood a motion for summary judgment filed by the company that owned and ran the hotel. According to her testimony, throughout the Filipino worker’s three years of employment, the general manager allegedly threatened her with the loss of her job, her family, and her husband—and with being sent back to the Philippines—if she did not give him oral sex and have sexual intercourse with him. Since she was Filipino, the general manager allegedly said she should be forced to have sex with Indian men, whom he claimed were “superior.” She said she was afraid of him physically and because of his position; he said if she reported him, she would be in “big trouble” because he was the “big boss,” powerful, and he could do anything he wanted, including preventing her from finding another job. She gave in to his increasing demands, including forced sex with the general manager and another man, because she said she could not risk losing her job.

The breakfast bar worker. After the breakfast bar worker was hired (two years after the housekeeper was hired), the general manager allegedly forced the two women to engage in group sex with him. He repeatedly told the breakfast bar worker that because she was local “white trash,” she should give him oral sex or have intercourse with him, she testified. If she did not, he threatened her with termination, but if she gave in, he rewarded her with extra hours. He allegedly told her that white women were lazy, stupid, and garbage, that his Indian investors would dominate the “white trash” who lived in their town, that she was white trash and only good for providing sex to powerful men like him, and that he could do what he wanted because he had power and money. She was afraid to tell anyone about the general manager’s behavior because she said she needed to keep her job, and he told her she would never work again if she complained.

But once there were two of them … The housekeeper testified that once she knew that the breakfast bar worker, who was also being sexually abused, was a witness to the general manager’s behavior, she felt more powerful. As a result, she then refused his demand for sex; he yelled at her and she slapped his face; he fired her. And as the general manager’s alleged demands for sex with the breakfast bar worker increased (he demanded that she have sex with “him and his friends” and also demanded anal sex), she too refused, telling him that what he was doing was illegal. He fired her too. Both women, in fact, alleged that they were fired after refusing oral sex.

They lost their jobs anyway. Notably, by the time the hotel’s summary judgment motion was heard, the general manager had settled with the women and was no longer part of the litigation. The hotel’s defense was to claim that Faragher/Ellerth affirmative defense applied, but the court said no. There were obviously tangible employment actions here—both women were fired—which meant the defense didn’t apply. Plus, it looked to the court like there was substantial record evidence that the general manager acted as an “alter ego” of the hotel, holding a high-level position as an owner and general manager, to render the hotel strictly liable for his behavior.

Were their objections enough? The women’s retaliation claims were straightforward; they said once they refused oral sex, they each got fired—as the general manager had threatened. The hotel argued that it was entitled to summary judgment anyway because their rejection of the general manager’s sexual advances was not “protected activity” under Title VII. And, while there is a circuit split as to whether someone who rejects a supervisor’s sexual advances actually has engaged in protected activity (the Eleventh Circuit has yet to weigh in), the court here agreed with the Sixth Circuit’s reasoning in EEOC v. New Breed Logistics that if an employee demands that her supervisor stop engaging in unlawful harassment by resisting or confronting the supervisor’s unlawful harassment, “the opposition clause’s broad language confers protection to this conduct.”

Think about this. This case is a reminder that sexual harassment is about power. These women believed that they had so few options, so little relative power, that they needed to submit to sex with their boss to keep their jobs as a housekeeper and a breakfast bar worker. Not their jobs at a television network. Not to get good work in Hollywood. Not to have a career in Silicon Valley. Not to work in BigLaw.

Have you ever been that powerless? Can you even imagine what your world would be like if this were your best option?

I worry sometimes that the Tinseltown trappings or high-profile defendants featured in what seem like ever-breaking “big name” sexual harassment allegations allow us to distance ourselves from the heartbreaking sadness of forced sexual encounters in vacant hotel rooms faced by these otherwise invisible women. When I think about sexual harassment, I want also to remember them.

The case is Charest v. Sunny-Aakash, LLC (M.D. Fla., September 20, 2017).

Off-duty police sergeant’s assault of woman at bar justified termination

October 12th, 2017  |  David Stephanides

One night, a 12-year, off-duty police sergeant was arrested and charged with third and fifth degree assault of a female following an evening of drinking at a bar. He was arrested after three witnesses identified him as the assailant. The victim suffered bruises, cuts, and abrasions. An employer investigation concluded that he was at fault, and the employer terminated him. He filed a grievance.

Subsequently, the sergeant was tried on the assault charges in criminal court, and he was acquitted. His successful defense had been based on the theory that his sister was the actual assailant. His acquittal in criminal court raised the question: Did the acquittal negate the employer’s conclusion that he was responsible for the assault? As a result, was he entitled to reinstatement following acquittal?

The arbitrator began by noting that arbitrations and criminal cases operate under different standards of proof. In the criminal trial, the standard of proof was beyond a reasonable doubt. In an arbitration involving termination, however, the standard of proof was clear and convincing evidence. The two standards, the arbitrator said, are not the same, although they are often equated.

The arbitrator, therefore, undertook his own analysis of whether the evidence established clear and convincing proof that the sergeant committed the assault. Direct evidence, which was unrebutted, implicated the officer. The sister testified, on the other hand, that she did not know how the woman received her injuries. The arbitrator characterized testimony from others supporting the officer as inconsistent and unreliable. As a result, the arbitrator concluded that this was an arbitration in which the facts established clear and convincing evidence of guilt, even if they did not establish proof beyond a reasonable doubt of criminal conduct. The arbitrator, therefore, was not bound by the acquittal, and he ruled that the employer had just cause to terminate. State of Minnesota Department of Corrections MCF-Rush City and AFSCME Council 5. July 15, 2017. A. Ray McCoy.

Successor liability for labor and employment violations depends on continuity and notice

October 2nd, 2017  |  Lorene Park

By Lorene D. Park, J.D.

No matter how cleverly a purchase agreement is drafted to avoid the assumption of liabilities, successor companies that have purchased another company may find themselves liable for the predecessor’s labor and employment law violations. Generally, courts consider three things in deciding whether to hold a successor company liable:

  1. Continuity in operations and work force of successor and predecessor employers. Were there changes in staff, office space, equipment, or working conditions? What was the pre-purchase relationship of the parties?
  2. Notice to the successor-employer of the predecessor’s legal obligation.
  3. The ability of the predecessor to provide adequate relief. Is the predecessor defunct?

Importantly, notice may include “constructive notice,” and successors can’t avoid liability by purposefully burying their heads in the sand. As the examples below suggest, courts generally see through this and other clever machinations designed to avoid liability. Before getting to that, however, it bears mentioning that there is some variation by jurisdiction in how the analysis plays out, including the development of a federal common law test that sets a lower bar for liability than the traditional common law test.

Traditional common law vs federal common law

A federal court in New York recently explained the development of the federal test. Under the traditional common law, a corporation that purchases another’s assets is generally not liable for the seller’s liabilities. Some states recognize exceptions for: (1) a buyer who formally assumes a seller’s debts; (2) transactions made to defraud creditors; (3) a buyer who de facto merged with a seller; and (4) a buyer that is a “mere continuation of a seller.” Courts have held that the latter two are “so similar that they may be considered a single exception” (Wang v. Abumi Sushi Inc. dba Abumi Sushi).

As for federal law, most employment statutes do not discuss whether liability may be passed to innocent successor employers, explained the Wang court. However, beginning with NLRA cases, federal courts developed a “substantial continuity” test, which sets “a lower bar to relief than most state jurisprudence” (it doesn’t require continuity of ownership), and was designed to impose liability on successors when necessary to protect important employment-related policies.

So how does this play out? Consider two cases with different outcomes, both focusing largely on whether the purchaser had notice, or “constructive notice” of potential liability.

Playing ostrich won’t preclude notice

In the first case, a debt collection law firm purchased a failing debt collection firm for $15,000. The successor admitted discussing some of the failing firm’s litigation but denied knowing of an employee’s sexual harassment claim until it was named as a defendant in her Title VII suit. Denying the successor’s motion for summary judgment, a federal court in New Hampshire explained that the principal reason for imposing a notice requirement is to ensure fairness by giving a successor “the opportunity to protect against potential liability through the negotiation process.” That purpose is not served if prospective liabilities could be shed simply by “playing ostrich,” the court averred, and here, the purchasers appeared to be engaging in an unspoken but mutually understood game of “don’t ask, don’t tell.”

Noting that precedent is unsettled on whether constructive notice is enough to establish successor liability, the court nonetheless applied the standard here. It explained that the purchasers were sophisticated attorneys. Also, the successor firm had, months before the purchase, hired an individual who was involved in the mediation of the employee’s sexual harassment claim before the EEOC. He testified that he did not discuss her claim with the successor, but the court was unconvinced, particularly since only a cursory review of the predecessor’s records would disclose the suit. The court also found substantial “business continuity.” The successor was using the predecessor’s office, hired most of its former employees, and now performs services for many of the same clients. Indeed, the modest purchase price of $15,000 was more suggestive of a de facto merger than a purchase, in the court’s view (Kratz v. Boudreau & Associates, LLC).

No notice, no liability

In the Wang case, the successor owner of a Japanese restaurant in New York was granted summary judgment against alleged FLSA violations that occurred before it was the plaintiff’s employer. The purchase agreement stated that the new owner bought the stock in trade, good will, and other assets “free and clear” of any debts or encumbrances, and there was no assumption of liabilities. Also, a rider represented that “the business sold herein is being operated in accordance with all laws, ordinances and rules affecting said business.” Nonetheless, a delivery worker employed by both the predecessor and successor claimed both should be liable for wage and hour violations that happened before the restaurant changed hands (subsequent alleged violations were not addressed by the motion).

Disagreeing, the court explained that the employee presented no evidence that the new owner had notice of the lawsuit or of the alleged violations giving rise to the suit. The court rejected the employee’s expansive view of constructive notice, which would impute notice of a predecessor’s violations on an innocent purchaser whenever the violations could have been discovered through diligence. That would “effectively create a duty of due diligence, which in the Court’s view should be imposed by Congress, or at least the Second Circuit, in the first instance.”

In discussing whether the federal “substantial continuity” test applied to FLSA cases, the Wang court noted that the Second Circuit has not yet weighed in. However, other Circuits have applied it in FLSA cases, including the Third, Seventh, Ninth, and Eleventh. Here, the Wang court found that the claim failed under both the traditional common law and the federal test. The lack of notice and the ability of the predecessor to provide relief were critical factors in this case, particular considering the goal of striking a proper balance between (1) preventing wrongdoers from escaping liability, and (2) facilitating the transfer of corporate assets to their most valuable users. To hold a purchaser of assets liable as a successor without notice of the potential liability, or where the predecessor is capable of providing relief to the wronged party—simply because it retained substantially the same work force to conduct a substantially similar business—would directly hamper the transfer of corporate assets to their most valuable users, said the court.

Cases where continuity is key

Purchase as a going concern. While the first two examples focused on whether the successor had notice of a claim so as to impose successor liability for a predecessor’s violations of labor and employment laws, the continuity of operations (office, equipment, business model, customers, etc.) is key in other cases.

For example, a company that purchased a troubled business as a going concern could not avoid WARN Act liability through clever drafting of the purchase agreement. Though the asset purchase agreement was written so the purchaser, Celadon Trucking, would avoid WARN Act requirements (stating that non-hired drivers “shall not be deemed . . . employees” of Celadon, that it would not be responsible for the predecessor’s “liabilities or obligations,” including under the Act), the Eighth Circuit affirmed a district court’s ruling that, because the company was purchased as a “going concern,” the laid-off individuals were Celadon’s “employees,” and it was liable for failing to give 60 days’ notice of a mass layoff. The appeals court also found that Celadon could not reduce any damages through the good faith defense (Day v. Celadon Trucking Services, Inc.).

Cherry-picking workforce. Continuity of operations is also key in cases where a purchaser allegedly tries to avoid legal obligations under employment laws by cherry-picking which of the predecessor’s employees to hire or retain after a purchase. In such cases, a court might find the purchaser was a “successor employer” and the refusal to hire was done for an unlawful purpose.

For example, purchasers have been held to be successor employers under ADA, liable for discriminatorily refusing to hire the predecessor’s disabled workers. In one case, a federal court in Florida upheld punitive damages against a successor based on a jury’s finding that it acted with malice or reckless indifference in refusing to a predecessor’s employee who had just taken FMLA leave due to cerebral meningitis. Though the employer claimed she failed to fill out application materials, she testified that she was informed by an employee of the successor, on the very day it assumed operations, that she was rejected due to excessive medical leave. This and other evidence raised a reasonable inference that the successor “used the transition . . . as a ruse to rid itself of certain employees under the guise of declining to offer employment,” said the court (Noel v. Terrace of St. Cloud, LLC).

Bringing work in-house, going non-union. In another case, the District of Columbia Circuit agreed with the NLRB that CNN was a successor employer to outside contractors that it had for years used to provide technicians to operate the electronic equipment at its New York City and Washington, D.C., bureaus. CNN did not contend that it made a significant change in the essential nature of the contractor’s operations; basically, it continued the same operations with employees who performed the same work, at the same locations, using the same equipment. The only question was whether the majority of CNN’s employees were previously employed by the contractor. Here, the overwhelming evidence of anti-union animus on CNN’s part led the Board to presume that a majority of incumbent employees would have been hired but for CNN’s discriminatory hiring practices. In the appellate court’s view, it was reasonable for the Board to infer that CNN planned to hire a sufficient number of former contractor employees to lend an air of impartiality, while avoiding the number that would impose a bargaining obligation. By replacing a unionized contract with a nonunion, in-house workforce, CNN violated the NLRA (NLRB v. CNN America, Inc.).

Successor bar doctrine – let dust settle before challenging union’s majority status. Cherry-picking a workforce is not the only way successor companies have tried to avoid collective bargaining. In an April 2017 opinion authored by retired Supreme Court Justice Souter, the First Circuit found that the NLRB properly applied its successor bar doctrine, under which an incumbent union is entitled to represent a successor employer’s employees for a reasonable period of time (not less than six months) before its majority status may be questioned. In the case at issue, Lily Transportation took over part of a bankrupt employer’s business that distributed parts for Toyota, and the incumbent union soon demanded to be recognized as the drivers’ bargaining rep. Refusing, Lily produced signed statements it claimed were from a majority of drivers saying that they no longer wished to be represented by the union. A law judge found that the company was a “successor employer” because it made a “conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor.” Applying the successor bar, the Board found that Lily unlawfully refused to bargain with the union (NLRB v. Lily Transportation Corp.).

You might as well be diligent

The take-away from these cases is fairly clear—courts will not let a purchaser avoid compliance with, or liability under, labor and employment laws through clever contractual language, purposeful ignorance of pending claims, or cherry-picking a workforce. As a consequence, purchasers are well advised to do their due diligence, uncover all the skeletons in the closet, and either factor potential liabilities into the purchase price or walk away.