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Additional FY 2017 OFCCP settlements not publicized via agency press releases posted

August 24th, 2017  |  Cynthia L. Hackerott

Three additional settlement agreements regarding which the OFCCP did not issue a corresponding press release have been posted on the agency’s Class Member Locator webpage and FOIA Reading Room) since Employment Law Daily last reported on such agreements in mid-May 2017. In all of the cases listed below, the contractor did not admit liability.

Aramark Uniform Services. As the result of a compliance review, the OFCCP concluded that, between January 1, 2012 and October 20, 2014,  manufacturer Aramark Uniform Services discriminated against 41 qualified female employees, who were placed into lower paying production positions, and, as a result subsequently, between August 22, 2012 and October 20, 2014, discriminated against 246 qualified males who were denied employment opportunities into the lower paying production positions within the “Operatives Job Group” at its Evansville, Indiana facility. Pursuant to a conciliation agreement, signed between May 5-22, 2017, the contractor agreed to pay $1,903.68 to settle the allegations of placement discrimination against female employees and $194,255.00 to resolve the hiring allegations against male applicants. Aramark will also extend 28 job opportunities and revise its placement and selection procedures.

Kappler, Inc. In a conciliation agreement, signed early to mid-May 2017, Kappler, Inc., a chemical protective clothing and accessories company, agreed to pay a total of $5,500.00 to resolve allegations of job placement discrimination at its Guntersville, Alabama facility. According to the OFCCP, from December 24, 2012 to December 24, 2014, the company discriminated against eleven qualified women who were not placed into “Cutter” or “Floor Worker” positions. Under the agreement, Kappler, Inc. will also extend two job opportunities and retroactive seniority.

Vulcan Information Packaging. Vulcan Information Packaging, a manufacturer of custom binders and promotional packages for local businesses, has agreed to pay a total of $56,000.00 to settle allegations of gender discrimination in job placement at its Vincent, Alabama facility. Between July 1, 2013 and July 1, 2015, the contractor placed 21 female employees into lower paying entry-level positions and paid these women less than similarly qualified men steered into non-entry level higher-paying positions, according to the result of an OFCCP compliance review. On top of the monetary settlement, the conciliation agreement, signed May 22-25, 2017, provides that Vulcan will revise its compensation and job placement policies and procedures.


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.”