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Employment Law Daily Wrap Up, January 25, 2013


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TOP STORY—DCCir: President Obama’s recess appointments to NLRB declared unconstitutional; Board lacked quorum and could not lawfully act

By Ronald Miller, J.D.

NLRB recess appointments issued by President Obama on January 4, 2012 failed to pass constitutional muster, ruled the D.C. Circuit (Noel Canning v NLRB, January 25, 2013, Sentelle, D). On the day before the purported recess appointments, the Senate met in pro forma session and acted to convene the second session of the 112th Congress to fulfill its constitutional duty to meet on January 3. Thus, the Senate was not actually in recess, and the recess appointments were invalid. As a consequence, the Board did not have a quorum, and so could not lawfully act.

An employer, Noel Canning, petitioned for review of an NLRB decision holding that it acted unlawfully by refusing to reduce to writing and execute a collective bargaining agreement reached with the Teamsters. Specifically, the employer questioned the authority of the Board to issue the order on two constitutional grounds. First, it asserted that the Board lacked authority to act for want of a quorum—three members of the Board were never validly appointed because they took office under recess appointments when the Senate was not in recess, it argued. Second, the employer asserted that the vacancies these three members purportedly filled did not “happen during the Recess of the Senate,” as required for recess appointments under the Constitution.

Statutory objections. However, before the court could consider the constitutional issues, the appeals court had to first decide whether the employer was entitled to relief on the basis of its nonconstitutional arguments. First, the court declined to overturn an administrative law judge’s credibility determinations. Next, it agreed with the NLRB that it lacked jurisdiction to consider the employer’s choice of law argument because it was not urged before the Board. Having determined that the employer did not prevail on its statutory challenges, the court turned to a consideration of its constitutional challenges.

Constitutional challenges. With respect to the employer’s constitutional challenges, the D.C. Circuit agreed that it was correct on both counts. Thus, when the Board issued the findings and order in this case, it could not lawfully act because it did not have a quorum.

Although no jurisdictional question was raised by the parties, the appeals court examined its jurisdiction to decide the relevant constitutional issues raised by the petition. Here, the court determined that it was faced with facts that triggered the Yardmasters exception (Railroad Yardmasters of America v Harris challenged the authority of the National Mediation Board on the basis that it had no quorum), and held that it could exercise jurisdiction under NLRA Sec. 10(e) because a constitutional challenge to the Board’s composition creates “extraordinary circumstances” excusing failure to raise the argument below.

In this instance, the court concluded that there was “no order to enforce” because there was no lawfully constituted Board. Consequently, the present order was outside the orbit of the authority of the Board because it had no authority to issue any order. It had no quorum. This, held the court, constituted an extraordinary circumstance within the meaning of the NLRA.

Recess appointments. On the date that the NLRB issued the ruling in this case, it purportedly had five members. It was undisputed that two Board members had been confirmed by the Senate and were validly appointed. The remaining three members were all appointed on January 4, 2012, purportedly pursuant to the Recess Appointments Clause of the Constitution, U.S. Const, art II, Sec. 2, cl. 3. However, at the time of the president’s recess appointments of the three members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma session every three business days from December 20, 2011 through January 23, 2012, but that “no business would be conducted” during those sessions.

The employer contended that “the Recess” in the Recess Appointments Clause referred to the period between sessions of the Senate when the Senate is, by definition, not in session and, therefore, unavailable to receive and act upon nominations from the president. On the other hand, the Board argued that recess means breaks in the Senate’s business when it is otherwise in a continuing session. The D.C. Circuit found arguments supporting the intrasession interpretation of recess unconvincing and disagreed with the Eleventh Circuit’s ruling in Evans v Stephens, cited by the Board. Rather, the appeals court agreed with the employer’s position, finding that history supported its interpretation and holding that “the Recess” is limited to intersession recesses.

Because the Senate was not in recess, the president’s recess appointments to the Board were invalid. Thus, the Board was operating without a quorum. Citing New Process Steel, LP v NLRB, which holds that the Board cannot act without a quorum of three members, the appeals court held the Board was not authorized to conduct business on the operative day that it issued the challenged ruling.

The case numbers are 12-1115 and 12-1153.

Attorneys: Noel J. Francisco (Jones Day) for Employer. Beth S. Brinkman (U.S. Department of Justice) and Elizabeth A. Heaney for NLRB. James B. Coppess (AFL-CIO Office of General Counsel) for Intervenor-Teamsters Local 760.

Companies: Noel Canning; The Noel Corporation

MainStory: TopStory Labor AgencyNews DistrictofColumbiaNews

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INDUSTRY PERSPECTIVE—Labor law experts ponder impact of D.C. Circuit’s ruling invalidating NLRB recess appointments

By Lisa Milam-Perez, J.D.

President Obama’s January 2012 recess appointments to the NLRB were unconstitutional and, as such, the Board was operating without a proper quorum last year, the D.C. Circuit ruled today, in a highly anticipated decision that substantially curtails the current Board’s functions. In an attempt to staff the agency in the face of a Senate logjam, Obama made a controversial appointment of three NLRB members while the Senate was not technically in recess but was meeting on a pro forma basis. “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception,” the unanimous appeals court held.

Reflecting the significance of today’s decision, business groups like the U.S. Chamber of Commerce and Coalition for a Democratic Workplace had sought to intervene in the case filed by a small company, which sought review of a Board ruling that held the employer violated the NLRA. Senate Republicans submitted an amicus brief, calling the recess appointments “an unprecedented power grab.” Supporters of the recess appointments had argued, to no avail, that the appointments were lawful because the Senate was not available to consult with the president and, as such, the pro forma sessions were insufficient to block the president’s move.

What does today’s decision mean for the legitimacy of the quorum-less Board’s other 2012 rulings? What affect will the circuit court’s decision have on the Board’s ability to function going forward? How likely is the decision to stand? Several labor experts weighed in.

A “stunning development.” Today’s opinion was “a stunning development,” according to W.V. Bernie Siebert and Patrick Scully, partners in the Denver, Colorado management firm Sherman & Howard. (Siebert is a member of the Employment Law Daily Advisory Board.) The decision invalidated a February 2012 ruling issued by the improperly constituted Board. “More significantly,” according to Siebert and Scully, “the validity of every decision issued by the NLRB in the past year, including some of the agency’s most controversial reversals of long-standing precedent, and rulemaking is now in doubt.”

The constitutional questions. “The Obama administration and the NLRB had contended that the term ‘recess’ could be applied to permit appointments during a session of Congress. Among other things, they contended that an adjournment as brief as three days constituted a ‘recess’ sufficient to permit the president’s so-called ‘recess appointment’ of NLRB members,” said Siebert and Scully. “The court today rejected these arguments, finding their adoption ‘would wholly defeat the purpose of the Framers [of the Constitution] in the careful separation of powers structure reflected in the Appointments Clause.’”

Today’s decision “is a homage to originalism, formalism, and textualism — the most conservative judicial interpretation as to what it means for there to be a ‘recess,’” according to Paul Secunda, a professor of law at Marquette University Law School and member of the WKL&B Labor and Employment Editorial Advisory Board. The court issued two holdings as to the constitutional question at stake, he noted: (1) there is no recess between sessions — an intra-session recess does not count; and (2) a vacancy itself must arise during an inter-session recess for a valid recess appointment to be made. (Only two judges adopted this second holding.)

“Of course this is worse than it sounds, because the way Congress currently operates, there is no inter-session anymore—they proceed pro forma so that no recess appointments can be made,” Secunda said. “Previously it was unheard of to use the filibuster for something as minor as an appointment to the NLRB. But what we’re seeing is a complete evisceration of the recess appointment process.”

Prior rulings invalidated? Secunda rejected the notion that today’s decision marked a complete undoing of every 2012 ruling issued by the Board. “The opinion does not say anywhere that it is holding void every decision handed down by the Board since January 2012,” Secunda pointed out. “When the Supreme Court handed down the New Process Steel decision, it basically invalidated all the Board’s past two-member decisions. The Board had to re-decide all those cases; it only just caught up.

“But there is no similar language in this D.C. Circuit opinion,” Secunda continued. “Technically speaking, today’s decision only undoes the Canning ruling. Unless the Board just concedes that its decisions [last year] had no effect, employers will have to raise individual challenges to the extent they were subject to an adverse ruling of the [improperly constituted] Board.”

On the other hand, Secunda acknowledged, with today’s decision, a number of significant Board rulings issued last year have largely lost their precedential value. “In the future when the Board seeks to apply those rulings from January 2012 to January 2013, the argument will be that those precedents don’t count. And there are at least four or five fairly significant decisions issued last year,” he pointed out.

“Because appeal of the court’s ruling is widely expected, the decisions issued by the Board cannot be completely disregarded,” Siebert and Scully said. “However, those decisions will remain in limbo while the appeal process plays out. Additionally, the NLRB may refrain from issuing further decisions while it pursues an appeal.”

A hobbled agency. “Now, if there is going to be a functioning Board, it’s going to have to be through advice and consent of the Senate. The alternative is that the Board won’t function; there won’t be a working quorum. This will compel the Obama administration to appoint moderate members to the NLRB. As a result, there will be less sympathetic decisions as far as workers’ rights under the labor laws.” And, as Secunda observed, unions are hurting already, with their numbers down to 6.6 percent of the private U.S. workforce. “This is another blow they did not need,” he said. “Though some unions are already bypassing Board procedure because of inadequate remedies and past management-oriented labor decisions.”

“If nothing else,” said Siebert and Scully, “today’s decision has significantly pushed back against an NLRB that was aggressively attempting to expand its reach and leaning heavily to the side of organized labor.”

Will ruling stand? Secunda noted that D.C. Circuit’s holdings are in conflict with other circuits. The appellate court’s first ruling is contrary to an Eleventh Circuit opinion and the second ruling, that a vacancy can only arise during an inter-session recess in order for a recess appointment to be valid, is in conflict with three other circuits.

“I would not be at all surprised if this were headed toward en banc review in the D.C. Circuit,” Secunda said. “The panel here is not necessarily representative of the entire circuit. Nor are these panel members particularly expert on labor law. There could be a potential change on en banc review.”

“The administration and the NLRB likely will attempt to appeal the decision to the Supreme Court,” Siebert and Scully predicted as well, noting that soon after the decision issued, the chairman of the NLRB issued a statement disagreeing with the ruling and “stating in essence that the Board would ignore the ruling.”

“Of course by the time this case makes its way to the High Court, it may have a different makeup,” Secunda said.

In short, “there are a lot of imponderables at this point,” according to Secunda. “Clearly it’s a big blow to the NLRB and its ability to put out decisions that are sympathetic toward unions and their members. But I don’t know how long this ruling is going to be in existence, depending on how the different processes of review go forward.”

Companies: Noel Canning; The Noel Corporation; U.S. Chamber of Commerce; Coalition for a Democratic Workplace: Sherman and Howard; Marquette University School of Law

MainStory: AgencyNews Procedure LitigationNewsTrends WhiteHouseNews LaborNews

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Cases


DISCRIMINATION—AGE—DHaw: Terminated after younger, female coworker was selected for new job by interview panel, 59-year old employee’s age and sex bias claims fail

By Kathleen Kapusta, J.D.

A 59-year old employee who was terminated after his younger, female coworker was selected for a new position failed to establish that his employer’s reliance on their performance before an interview panel, which was made up primarily of women, was pretext for age and sex discrimination, a federal district court in Hawaii ruled (Hollister v Mrs. Gooch’s Natural Food Markets, Inc, January 22, 2013, Kobayashi, L). Accordingly, the court granted summary judgment to the employer on the employee’s state law employment discrimination claims.

The employee worked as a store operations supervisor for a natural food market. After his position was eliminated, the employee was required to compete with a younger female assistant for a newly created inventory control specialist position. Pursuant to company policy, the coworkers were directed to follow the same interview process, including the completion of an assignment. Contending that the female employee submitted a thorough assignment and gave a superior performance at her interview, she was hired for the position and the employee was terminated. He then sued alleging violations of state discrimination laws based on age and gender.

Ageist comments. The employee first alleged that a member of management referred to him as “old man” in front of his female coworker on several occasions, which he contended was direct evidence of discrimination. Rejecting this assertion, the court observed that the manager was not involved in the interview process and was not even employed at the store when the termination decision was made. Accordingly, there was no relationship between the remarks and the employment practices at issue sufficient to establish discriminatory animus on the part of the employer.

Interview panel. The employer asserted that it had a legitimate reason for declining to hire the employee—the interview panel determined that his female coworker outperformed him and it placed great weight on the interview in making its decision. The employee countered that the composition of the panel—five women and one man—and the female coworker’s friendship with two panel members was evidence of discrimination. However, he failed to explain exactly how the panel’s composition, which included members of the same age and sex as the employee, disadvantaged men or older workers. Although he relied on evidence that the lone male member originally selected him for the position, then changed his mind on a second, deciding vote, the panelist’s notes indicated that while he liked both candidates and thought either could do the job, he believed that the female candidate would be better at training others, which was part of the job requirement. Thus, there was no evidence of any discriminatory animus on the part of the panel members or management’s composition of the panel.

With respect to the friendship between the female candidate and two of the panel members, there was no allegation that those panelists favored the female employee for the position because of her age or sex. Moreover, each panelist had only one vote and neither friend made comments or otherwise demonstrated animus based on the employee’s age or sex. Further, the court noted, several courts have held that favoring an employee because of friendship is not favoring the employee because of a protected class. Accordingly the court found that the employee failed to establish that his employer’s legitimate reasons for selecting the younger, female candidate were pretexutal.

The case number is 12-00176 LEK-KSC.

Attorneys: Michael P. Healy (Michael P. Healy Attorney at Law) for Employee. Heather M. Knutson (Torkildson Katz Moore Hetherington & Harris) for Employer.

Companies: Mrs. Gooch’s Natural Food Markets, Inc

Cases: AgeDiscrimination Discrimination Discharge StateLawClaims HawaiiNews

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DISCRIMINATION—DISABILITY—MDTenn: Alleging she was denied chance to rotate duties because employer believed she was dyslexic, warrant clerk can proceed with disability bias claim

By Kathleen Kapusta, J.D.

A warrant clerk for a metropolitan police department, who alleged that her employer refused to allow her to rotate positions because it believed, despite her statements to the contrary, that she was dyslexic, can proceed with her disability bias claim, a federal district court in Tennessee ruled (White v Metropolitan Government of Nashville and Davidson County, January 24, 2013, Trauger, A). The court also denied summary judgment to the employer on the employee’s retaliation and hostile work environment claims.

Radio duty assignment. Assigned to work the radio, the employee was not allowed to rotate clerical duties because she was dyslexic. Although she denied being dyslexic, she claimed her supervisors repeatedly denigrated her about the quality of her work in front of other employees and singled her out for negative treatment. As a result, she filed a grievance against her supervisor contending that she was being harassed and subjected to a hostile work environment. Although her complaints were found to be without merit, a grievance panel recommended that she be offered the opportunity to rotate job assignments.

On the same day she received the final determination of her grievance, she was notified that she was being charged with a policy violation stemming from an incident two years earlier in which she failed to properly verify a warrant and the wrong person was arrested. She subsequently filed a disability discrimination charge with the EEOC and five weeks later was notified that she was being charged with a second policy violation related to the same incident. She also received a negative performance evaluation from her supervisor and was suspended for seven days for the policy violations. As a result of the stress, she filed for and received a disability pension. She then sued asserting claims under the ADA for discrimination, hostile work environment, and retaliation.

Discrimination claim. Noting that her supervisors continued to refuse her requests to rotate even after she complained to human resources that she was not dyslexic and the grievance panel recommended that she be permitted to rotate positions going forward, the court found that this could constitute potentially actionable discrete acts. The department argued that, even if the employee established that it believed she had a disability, she failed to show that it regarded her as substantially limited in one or more major life activities. The employee countered that the department wrongfully believed she had dyslexia, which would have limited her ability to perform functions involving extensive reading. Noting that the Sixth Circuit has held that reading constitutes a major life activity and that the EEOC has identified dyslexia as a specific learning disability, the court determined that there was at least a question of fact as to whether the department regarded the employee as disabled.

The employee next contended that because of her perceived disability she was denied roles and responsibilities enjoyed by other clerks. Although the employer countered that it did not typically rotate positions, the court found that, under the circumstances presented here, there was a material fact dispute as to whether the denial of rotation constituted a materially adverse employment action. Although the employer offered a legitimate, nondiscriminatory reason for its refusal to rotate the employee—her past work performance and her alleged repeated statements that she had a learning disability—the employee offered a competing version of the facts. She contended she never told anyone that she was dyslexic and repeatedly told her supervisors that she did not suffer from an impairment that would limit her from performing other clerical duties. Although the court found it to be a close call, it concluded that there was a disputed fact issue as to whether the department’s non-discriminatory reasons for refusing to rotate the employee constituted a pretext for discrimination.

Hostile work environment. The employee next alleged that her supervisors’ repeated negative comments and treatment in front of others caused her to feel harassed and intimidated. Corroborating the employee’s claims, a coworker testified that her supervisors singled her out for particularized negative treatment. The employee also contended that she was forced to take her radio to the bathroom with her, which she found to be shameful in the eyes of her coworkers. As a result of the negative comments and treatment related to her disability, her coworkers began to shun her and isolate her. These allegations were sufficient to allow the employee to proceed on her claim that her workplace conditions were sufficiently severe and pervasive to constitute a hostile work environment.

Retaliation. Denying summary judgment to the employer on the employee’s retaliation claim, the court found that the seven-day suspension without pay, which was later reduced to a four-day suspension on the basis that it was excessive, plainly constituted an adverse employment action. Further, there was a disputed issue of fact as to whether the refusal to rotate the employee constituted an adverse employment action. In addition, a negative performance evaluation can constitute an adverse employment action if it significantly impacts an employee’s wages or professional advancement.

Turning to the issue of causation, the court noted that the department did not charge the employee with a policy violation until after she filed a grievance against her supervisor and then added a second charge after she filed her EEOC complaint. Soon after that, she received an uncharacteristically negative performance evaluation. Although the department offered nondiscriminatory reasons for its actions, the court found that the record was sufficient to create a potential inference of pretext. Thus, it was up to a jury to decide whether the department acted with retaliatory animus.

The case number is 3:11-cv-0607.

Attorneys: Andrew C. Clarke (Law Office of Andrew C. Clarke) for Employee. Allison L. Bussell (Metropolitan Legal Department) for Employer.

Companies: Metropolitan Government of Nashville and Davidson County

Cases: Discrimination DisabilityDiscrimination Retaliation PublicEmployees TennesseeNews

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DISCRIMINATION—RACE—2ndCir: African-American investment attorney discharged in RIF due to firm’s economic difficulties after Lehman Brothers’ bankruptcy failed to advance race bias and FMLA reprisal claims

By Marjorie Johnson, J.D.

An African-American investment attorney, who was discharged as part of her law firm’s reduction-in-force following a significant decrease in revenue and billable hours due to Lehman Brothers’ bankruptcy, failed to advance her claims of race bias under federal, state, and municipal law, the Second Circuit ruled, affirming dismissal of her claims on summary judgment (Simmons v Akin Gump Strauss Hauer & Field, LLP, January 24, 2013, per curium). The appeals court also affirmed dismissal of her FMLA reprisal claim, despite her assertion that several partners had criticized her for taking time off, because following her leave she was removed from a termination list and she wasn’t discharged until over a year later.

Race bias claims. Summary judgment was properly granted as to the attorney’s Title VII, Sec. 1981, and New York State Human Rights Law claims because she failed to present sufficient evidence from which a reasonable inference of race bias could be made. Significantly, it was undisputed that at the time of her discharge in 2009, the law firm was experiencing significant economic difficulties like many other law firms throughout the country. The bankruptcy of Lehman Brothers in 2008 decreased the revenue and average billable hours of the group to which the attorney was assigned, the New York Investment Funds Practice Group (“IFPG”). The following year, revenue was down 26 percent and average billable hours were down 14 percent.

The record further revealed that, in October 2008, the IFPG discharged an associate in the Los Angeles office for economic reasons. In March 2009, the firm laid off 47 of its approximately 760 attorneys in its major U.S. offices, including seven in the IFPG (five Caucasian males, one Caucasian female, and one Asian-American female). In April 2009, the firm announced that it was deferring the start dates of incoming associates to late 2009 and early 2010. Then in June 2009, an associate in the Dallas office of the IFPG was converted from a full-time associate to an hourly employee, in which capacity he earned approximately $600 in 2009. It was in this context that, in September 2009, the African-American attorney was told that her employment would terminate by year-end 2009 as part of a reduction-in-force.

On this undisputed record, a reasonable jury could only reject the attorney’s argument that the firm’s decision to terminate her employment was based at least in part on race, the appeals court ruled. Indeed, the undisputed facts showed that, at least in one instance, the firm treated her more favorably because of her race. Specifically, it removed her from the March 2009 termination list—thus delaying her discharge—at least in part in the interest of diversity.

The appeals court rejected the attorney’s attempt to show that the firm’s business circumstances had improved by September 2009 based on a comment made by IFPG’s co-head that New York was the “hotspot” and “where the business was.” She took those comments “clearly out of context,” because they were made in an effort to motivate the IFPG lawyers and explain that the group’s leaders were working to address the business challenges they faced.

Finally, the attorney also failed to present evidence showing that the firm’s asserted non-discriminatory reasons for her discharge were pretextual. Evidence of the low percentage of African-American associates in the New York IFPG was not sufficient to meet her burden in this regard. Rather, the appeals court concluded that, given the evidence, no reasonable jury could have found that she was selected for the RIF at least in part because of her race.

NYCHRL claim. Although the district court erroneously analyzed the attorney’s New York City Human Rights Law (NYCHRL) claim under the same standard for her claims under federal and state law, such error was inconsequential. Specifically, because the NYCHRL was intended to provide a remedy reaching beyond those provided by the counterpart federal civil rights laws, the firm should have been required to show that no reasonable jury could have found that it treated the attorney “less well” at least in part because of her race. However, even under the independent liberal construction, summary judgment was warranted because there was no showing that the attorney was treated “less well” based in whole or in part on discrimination, as opposed to the firm’s proffered reasons.

FMLA reprisal. Summary judgment was also warranted against the attorney on her FMLA reprisal claim because she failed to refute the firm’s non-discriminatory economic reason for terminating her. The appeals court refused to infer pretext from her assertion that shortly after her return from FMLA leave several partners commented that she had spent too much time out of the office to develop her skills and client relationships. Cutting against her was the fact that she was removed from a termination list just six months after her return from FMLA leave. Moreover, she was not discharged until year-end 2009, more than one year after her return from leave.

The case number is 11-4480-cv.

Attorneys: Debra L. Raskin (Vladeck, Waldman, Elias & Engelhard) for Employee. Christine N. Kearns (Pillsbury Winthrop Shaw Pittman) for Employer.

Companies: Akin Gump Strauss Hauer & Feld, LLP

Cases: Discharge Discrimination EmployeeLeave RaceDiscrimination StateLawClaims ConnecticutNews NewYorkNews VermontNews

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DISCRIMINATION—SEX—CalCtApp: Manager who did not cooperate with investigation into his alleged misconduct failed to show his discharge was wrongful or that statements about his termination were defamatory

By Lorene D. Park, J.D.

Affirming summary judgment in favor of an employer that fired a manager accused of harassing and discriminating against a subordinate based on her sexual orientation, a California appeals court found that the employee could not show the reasons for his termination were pretext for discriminatory discharge based on gender (McGrory v Applied Signal Technology, Inc, January 24, 2013, Rushing, C). His defamation claim also failed because an executive’s comment to another employee concerning the reason for the termination was privileged.

The employee, a department manager, reported directly to the chief financial officer (CFO). A dozen subordinates reported to the employee, including a female who lodged a complaint against him with HR. After complaints from her coworkers, the employee had given his female subordinate a verbal warning for poor performance. Subsequently, she accused him of harassing and discriminating against her based on her gender and sexual orientation after she announced her marriage. She also reported that he told off-color jokes insensitive to other cultures. The employer investigated using an outside female attorney whom the employee (and a male subordinate) found biased and confrontational.

The attorney’s report partially exonerated the employee, finding the subordinate did have performance issues, but also substantiated the claim that he regularly made sexist and racist jokes. Further, the report indicated that the employee and a male subordinate were uncooperative and untruthful in the investigation. As a result, the employer fired the employee and disciplined the male subordinate. The employee filed suit, alleging termination in violation of the public policy against gender discrimination. He also asserted a defamation claim based on the HR vice president’s statements to other employees that he had been fired for not cooperating with the investigation. The trial court granted summary judgment for the employer, finding it had legitimate reasons for the termination and the employee failed to show pretext. The court also found that the alleged defamatory statements were privileged.

Legitimate reasons. Affirming, the appellate court found no evidence warranting a reasonable inference that the employee was fired because he was male. The report concerning his female subordinate’s allegations found that he did not discriminate, but that he violated the employer’s policies on sexual harassment and ethics. Several witnesses reported that he regularly made racist or sexual comments or jokes. Not only did he admit it to the investigator, he told her a couple of the jokes, one of which made vulgar references to a woman’s breasts and a man’s penis. As to other facts, however, he was not forthcoming. Citing privacy concerns, he refused to disclose his rankings of subordinates or which coworkers complained about the female subordinate whose allegations started the investigation. The investigator concluded that firing the employee was justified and recommended that the male subordinate, who was also evasive, receive a written warning.

The employee claimed the internal investigation was a “proceeding” under California’s Fair Employment and Housing Act and his participation was a protected activity for which he could not legitimately be terminated. The appeals court disagreed, reasoning that being uncooperative or deceptive in an internal investigation of a discrimination claim is not protected under state or federal law. Thus, the employer had a legitimate reason for the termination. The court also concluded that the employee’s violation of the employer’s policies on sexual harassment and ethics as well as the employer’s concern over legal liability were also legitimate nondiscriminatory reasons for his termination.

No pretext. Rejecting the employee’s attempts to show these reasons were pretextual, the court found that the CFO’s only giving the employee one of the reasons (misconduct in the investigation) for his termination did not show the employer gave conflicting reasons and did not undermine the other two reasons (violation of policies; legal liability concerns). Further, the employee’s assertion that the reasons were false and the employer did not have good cause to fire him misstated the applicable standard. An employer does not need good cause to fire an at-will employee and no inference could be drawn from the mere lack of conclusive evidence of misconduct by the employee.

Moreover, there was no evidence supporting the employee’s claim that the investigation was biased against men; indeed, the record evidence was to the contrary. In addition, there was no disparate discipline here because the other two men whom the investigator found to have told inappropriate jokes, one of whom received a written warning for misrepresentations in the investigation, were subordinate to the employee. Thus, they were not similarly situated and they engaged in different conduct. Because the employee failed to show that the employer’s reasons for firing him were pretext for discrimination, summary judgment was appropriate.

Defamation. The employee alleged that he was slandered when the HR vice president told a coworker that the employee was fired for being uncooperative in the investigation, despite receiving warnings. Rejecting this claim, the court found that the employer’s statements to a worker concerning the reason for the termination were conditionally privileged. Although the common interest privilege is not well-defined, it applies when an employer makes statements in good faith so appropriate action can be taken against the employee; the danger of future breaches is minimized; and workers do not develop misconceptions affecting their employment.

Here, the employee could not show the comments were made with malice. Indeed, he did not assert that the speaker harbored malice toward him but argued there were no reasonable grounds to believe he did not cooperate in the investigation or had received warnings. To the court, this assertion simply reargued the issue of whether his termination was justified, which is not the question in a defamation claim. The inquiry instead focuses on whether the statements were made recklessly without reasonable belief in their truth.

There was no evidence the HR vice president believed that the employee was cooperative when he said otherwise. It was undisputed the investigator reported that the employee did not cooperate and that the employee was told that was why he was being fired. Further, there was no evidence that a reasonable person could not have believed the investigator’s report. Thus, the comments were conditionally privileged.

The case number is H036597.

Attorneys: Michael J. Korda (Korda, Johnson & Wall) for Employee. John R. Shuman, Jr. (Law Offices of John R. Shuman, Jr.) for Employer.

Companies: Allied Signal Technology, Inc

Cases: SexDiscrimination Discharge TortClaims StateLawClaims CaliforniaNews

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EVIDENCE, DISCOVERY—MDPa: Employee blocks admission of psychiatric records, though employer can use them to rebut evidence that emotional problems stemmed from alleged discrimination

By Deborah Hammonds, J.D.

A federal district court granted an employee’s motion to prevent the admission of his psychiatric records, with limitations, in a discrimination lawsuit (Savidge v Donahoe, January 23, 2013, Mariani, R). In addition, the employee would be allowed to provide testimony to support his contention that the incorrect coding of his FMLA paperwork affected the decision to deny his transfer.

The employee filed a motion in limine to preclude the admission of his medical records from the Veteran’s Affairs Hospital as they related to his involuntary inpatient psychiatric treatment, arguing his employer’s motive for including the medical records was improper. The employer, on the other hand, argued the records were admissible in order to establish the degree of the employee’s preexisting emotional trauma before the alleged discrimination occurred.

Under the Federal Rules of Evidence, the employer should be permitted to introduce evidence of prior psychological or psychiatric conditions experienced by the employee because such evidence is relevant to whether the emotional trauma the employee claims to have suffered is, in whole or in part, a result of the alleged discrimination at issue. Therefore, the employer was entitled to offer such evidence solely to rebut the employee’s evidence that any emotional problems from which he might suffer were attributable to the alleged discrimination.

Further, consistent with a prior order, the court did not exclude evidence relating to the employee’s claim for emotional damages, noting the employee had the right to object to evidence he believed was improperly offered at trial. Accordingly, the employee’s motion to preclude the admission of his psychiatric records was granted with this and other limitations noted by the court.

FMLA paperwork. Another issue before the court was the employer’s motion to preclude the introduction of the employee’s FMLA paperwork because he did not state an FMLA claim. The employer also argued the paperwork was irrelevant to the question of whether the employee was regarded as disabled. The employee argued that the paperwork would show that his 26 unscheduled absences were incorrectly coded by the employer’s computer system and that this error resulted in his appearing to miss an unacceptable amount of unexcused work.

However, the court found the employee’s FMLA paperwork was relevant because it was contained in the employee’s personnel file to which the employer and the decision- makers possibly had access. The paperwork included medical information that a reasonable jury might view as showing that the employer’s proffered reason for denying the employee’s transfer request was actually a pretext for unlawful discrimination based on having improperly perceived the employee as disabled. The employer acknowledged that the employee’s attendance records were reviewed by human resources and labor relations “in relation to the second reassignment in 2008.”

The court noted it will be part of the employee’s burden “to show that the ‘failure to assign FMLA leave to Plaintiff’s absences’ is in whole or in part attributable to one or more of the persons who made the decision to deny” his second request for transfer to a custodial position or that after the decision to deny his request for transfer was made, and he was apprised of the adverse decision, he brought to the attention of anyone of the decision-makers his claim that the absences attributable to him should have been excused as FMLA-sanctioned absences. Accordingly, the employee will be permitted to provide testimony regarding his FMLA paperwork.

The case number is 3:08-cv-2123.

Attorneys: Cynthia L. Pollick (The Employment Law Firm) for Employee. Melissa A. Swauger U.S. Attorney’s Office) for Employer.

Companies: United States Postal Service

Cases: EvidenceDiscovery EmployeeLeave Discrimination Retaliation PennsylvaniaNews

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NLRB WEEKLY SUMMARY—For the week ending January 18, 2013

In this issue of the NLRB’s weekly summary, Board staff summarize one NLRB decision and two appellate court decisions. Decisions of administrative law judges and unpublished Board decisions in representation and unfair labor practice cases are also listed.

Cases: NLRBWeeklySummary Labor AgencyNews

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PENSION AND BENEFIT PLANS—8thCir: Civil penalty claim for failure to give COBRA notice of insurance rights could not advance where employee received extended plan coverage at no cost; attorneys’ fees correctly denied

By Pamela Wolf, J.D.

A bankruptcy court did not err by granting summary judgment to Interstate Bakeries Corporation on an employee’s claim for civil penalties due to the employer’s failure to provide required COBRA notices of his health insurance continuation rights at the commencement of coverage and when he was discharged, ruled the Eighth Circuit (In re: Interstate Bakeries Corp, January 25, 2013, Gruender, R). The lower court properly weighed the benefit of the employee having received extended plan coverage at no cost against his asserted damages from the lack of COBRA notice. Nor was the employee entitled to attorneys’ fees; though his filing of an administrative expense claim with the bankruptcy estate may have triggered the reimbursement he received from the employer, he failed to prevail on a single contested issue and his litigation arguments were “ludicrous.”

The employee was terminated after he was determined to be disabled under the Social Security Act. Although he was discharged in September 2006, the employer did not process his termination until August 2008, when he became eligible for Medicare benefits. Nevertheless, the employee claimed in the employer’s bankruptcy proceedings that the employer acted unlawfully by failing to give him the statutorily required notices concerning his health insurance coverage rights, both when he initially became a participant in the benefit plan and upon termination. The bankruptcy court granted summary judgment to the employer and a district court affirmed.

Civil penalty. The Eighth Circuit likewise affirmed summary judgment, rejecting first the employee’s argument that the bankruptcy court engaged in “an impermissible hindsight analysis” when it weighed the benefit of his having received extended plan coverage at no cost against his claimed damages from the lack of COBRA notice. In determining whether a civil penalty is warranted under 29 U.S.C. Sec. 1132(c)(1), “it is well established that one of the primary considerations is the prejudice to the plaintiff caused by the failure to give the required COBRA notice.” The fact that the employee received free, ongoing coverage despite the lack of COBRA notice was “plainly relevant to the degree of prejudice he suffered.”

The appeals court similarly rejected the employee’s challenge to the bankruptcy court’s factual findings concerning the value of the coverage he received. His argument as to the accuracy of the potential $8,200 total premium over 29 months that the lower court concluded he received did not demonstrate any abuse of discretion; the prejudice analysis was not based on those figures. As the employee urged, the bankruptcy court considered only the period until the employer cancelled coverage, stating that “the prejudice [the employee] experienced [from the cancellation of coverage] was insignificant compared to the benefit he received from two years [rather than 29 months] of uninterrupted free health care.” As to the first 12 months after his termination, the finding that he received “two years of uninterrupted free health care” in lieu of COBRA coverage was accurate no matter whether the first year was rendered free by a CBA.

Nor should the lower court have assigned more weight to the damages the employee suffered. He asserted that other courts addressing circumstances similar to his have found enough prejudice to justify a penalty. He claimed that he had to pay retail pharmacy prices and switch to generic medications during his non-coverage period, but the precedent he cited did not find this type of prejudice severe enough to warrant a penalty. Likewise, although he claimed that he postponed medical care, he offered no evidence as to what that medical care would have been or how the delay resulted in a “physical impact” on him. In the absence of any evidence that the employee’s postponement of medical care during his non-coverage period presented an increased risk, to the extent sufficient in precedent, the appeals court could not conclude that the bankruptcy court weighed the prejudice against him incorrectly as to his damages evidence.

The appeals court similarly rejected the employee’s contention that the bankruptcy court erred by holding that no liability can arise for a COBRA notice violation if the administrator continues to provide plan benefits after the qualifying event. The bankruptcy court did not make a categorical statement; rather it recognized its discretion to award a civil penalty and properly considered factors such as “the prejudice to the plaintiff and the nature of the plan administrator’s conduct” in reaching a decision. Likewise, the appeals court declined to find that the denial of civil penalties in this case was at odds with the “purpose” of COBRA to prevent gaps in health care coverage, as urged by the employee. Whatever the general purposes of COBRA may be, Sec. 1132(c)(1) does not mandate a penalty in every case where there has been a gap in health care coverage, but rather expressly reserves discretion to the court.

Finally, the employee’s argument that the bankruptcy court wrongly found the employer had acted in good faith was also doomed. “A finding of bad faith typically requires a ‘willful failure on [the plan administrator’s] part to send the notice.’” Here, it was undisputed that the employer’s normal practice was to provide the required COBRA notices to all employees, and there was no evidence that it knew it had failed to send a required notice to the employee when it belatedly terminated his coverage. The employee relied solely on the employer’s conduct in “clawing back” previously paid benefits. But the employer, absent knowledge that its COBRA notice was deficient, was permitted to recover any excess benefits it had paid under the terms of the plan. A month after the employee filed a claim for an administrative expense asserting the failure to provide notices, the employer rescinded the termination of coverage and repaid all the benefits in full. Thus, there was no error in the lower court’s finding that the employer acted in good faith. The Eighth Circuit, therefore, affirmed summary judgment to the employer on the employee’s claim for civil penalties.

Attorneys’ fees. The employee asserted that even if he was not entitled to recover civil penalties an award of attorneys’ fees was appropriate. The Eighth Circuit had previously reversed a district court’s denial of attorney’s fees under Sec. 1132(g)(1) when the claimant ultimately lost on the issue of whether civil penalties were warranted, yet prevailed at trial on contested issues such as whether notices were sent, whether coverage should be reinstated, and whether medical expenses should be reimbursed.

None of these intermediate issues were contested here, however. Instead, after the employee filed his application for an administrative expense in the bankruptcy proceeding, the employer reinstated his coverage, reimbursed his medical expenses, and declined to seek any corresponding premiums. The employer also conceded that the notices were not sent. Although the employee’s decision to file an administrative expense claim with the bankruptcy estate may well have triggered the reimbursement, nonetheless, as to the issues actually in dispute in the subsequent adversary proceeding, he failed to prevail on a single issue, and the bankruptcy court characterized his arguments as “ludicrous.” The appeals court agreed with the bankruptcy court that it could not “fairly call the outcome of the litigation some success on the merits” as required to award attorneys’ fees and costs.

Dissent. Judge Bye, dissenting, wrote that in denying statutory penalties the bankruptcy court had essentially ignored the gap in health care coverage through which the employee had suffered, and had placed too much emphasis on the employer’s post-litigation reinstatement of health care coverage. Moreover, even if the bankruptcy court was within its discretion to deny the claim for civil penalties, the denial of the employee’s request for attorneys’ fees “was plainly wrong and an abuse of discretion.” He had clearly succeeded in establishing a meritorious claim that the employer had failed to comply with COBRA’s notice requirements. And it was significant that the employer reinstated the employee’s healthcare coverage only after he initiated legal action.

The case number is 11-1595.

Attorneys: Bonnie L. Clair (Summers & Compton) for Employee. Paul M. Hoffmann (Stinson & Morrison) for Employer.

Companies: Interstate Bakeries Corporation; Hostess Brands, Inc

Cases: PensionBenefitPlans AttorneysFees ArkansasNews IowaNews MinnesotaNews MissouriNews NebraskaNews NorthDakotaNews SouthDakotaNews

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RETALIATION—NYAppDiv: Nigerian nurse discharged ostensibly due to fight with two coworkers she repeatedly accused of harassment gets second chance at state law reprisal claim

By Marjorie Johnson, J.D.

A divided New York appeals court reinstated a state law reprisal claim by a Nigerian born African-American nurse who was discharged ostensibly due to her involvement in a physical altercation with two employees whom she had previously repeatedly accused of racially harassing her (Asabor v Archdiocese of NY, January 22, 2013). Reversing summary judgment, the majority held that a plausible inference could be made that, given the nature and degree of unaddressed racial animus at the mental health facility, the employer was motivated by a justified fear of liability due to its insufficient response to the nurse’s complaints. The dissent disagreed, arguing that there was no rational basis for concluding that the nurse— like her two antagonists—was terminated for any reason other than violating the employer’s rule against physical fighting in the workplace.

Factual background. The nurse was hired to work at an inpatient adult mental health facility that was funded by Catholic Charities Community Services and the Archdiocese of New York. She claimed that from the outset of her employment coworkers openly declared their hatred of blacks and discussed plans to sabotage her job. On her second day of work, someone hung a decomposing bird on the back of her office door. She particularly complained of two coworkers, one of whom allegedly blocked her entrance with a folded elbow, failed to give her business related messages, repeatedly called her an “African b***h,” stated that “something smells” when she walked by, and directed her to “go back to the jungle.”

Within months, the nurse complained to the facility’s director and personnel director. In response, the personnel director told her to start documenting the racist behavior. She also complained that staff members were stealing medication from patients and engaging in other HIPAA violations. In August 2004, the executive director, director, and personnel director met with the nurse to discuss her complaints. At the meeting, she complained of rampant racial hostility and recounted the coworker’s insulting language and behavior. She also complained of the director’s dismissive attitude toward her verbal complaints. The executive director asked her whether she intended to contact an attorney, and she responded yes, since no one was listening to her. The executive director assured her that things were going to change.

About a month later, the nurse got into a heated argument with one of the employees who had been harassing her. Following the incident, she was issued a disciplinary notice from the director stating that she ignored his directive to lower her voice and was unprofessional and insubordinate. The nurse expressed her frustration to the director that the coworker was not also disciplined. Several months later, the State Office of Mental Health cited the facility for failing to consistently provide staff with cultural sensitivity training. Over the next few months, the employee continued to complain about the harassing coworker’s behavior. At one point, she begged her supervisor in writing for her help due to the unbearable workplace created by the harassing coworker’s disdain for her. However, nothing was done.

On August 9, 2005, a patient at the facility started hallucinating and called the police. The nurse tried to help, but one of the harassing coworker’s told her to leave. The nurse got angry, and a fight in which people were injured broke out between the nurse and the two coworkers. The assistant director of residential services eventually called the nurse and asked her to leave the premises. Before departing, she questioned the fairness of singling her out as the only one asked to leave and told him that she was going to contact an attorney to address the racism at the facility and the manner in which management condoned it.

The next day, all three individuals involved in the altercation were suspended from work, pending an investigation of the incident. On the same day, the employee wrote to the director reiterating her intent to contact an attorney. She and the other two employees were eventually terminated for engaging in the altercation. The employee brought the instant action asserting several claims, most of which were dismissed and not the subject of this appeal. At issue was the trial court’s grant of summary judgment against the nurse on her reprisal claim under the NewYork State Human Rights Law (NYSHRL).

Reprisal. Reversing summary judgment as to the nurse’s reprisal claim, the majority held that she sufficiently established that she engaged in protected activity by making numerous complaints of harassment and indicating—both orally and in writing—her intent to call an attorney if management failed to remedy her coworkers’ rampant and blatant racism. It was also clear that her supervisors knew she was unhappy about her abusive environment. She indicated as early as the fall of 2004 that she intended to seek an attorney if the racist behavior did not end.

Moreover, she sufficiently refuted the employer’s assertion that she was discharged based on its prohibition against workplace altercations. “The fight was the direct result of 13 months of escalating hostility of which defendants were aware, and which the record reflects stemmed from racial animus,” stated the court. The employer arguably acted in a race-neutral manner by firing all three participants in the fight. However, an equally plausible inference—given the nature and degree of unaddressed racial animus at the facility—was that the employer was motivated by a justified fear of liability stemming from an insufficient response to the nurse’s complaints.

Individual defendants. The full court also held that triable fact issues existed as to whether the individual defendants were the nurse’s employers under the NYSHRL. The director, personnel director, executive director, and assistant director all had the authority to make and effectuate high-level managerial decisions and did more than carry out personnel decisions made by others. Notably, they were involved with interviewing and/or hiring the nurse for her position. The personnel director also encouraged the nurse to keep track of racial incidents and to come to her with any problems. They also met with her and promised to stem the hostile work environment. Thus, triable fact issues existed as to whether these persons condoned racially discriminatory conduct by approving or acquiescing to the actions of the harassing coworkers.

Dissent. The dissent argued against reinstating the nurse’s reprisal claim because it was undisputed that the altercation for which she was ostensibly discharged, in fact, occurred, that she was involved in it, and that such conduct violated the facility’s policy against fighting in the workplace. Moreover, any reasonable inference that the true reason for her discharge may have been the threat to sue was “conclusively negated” by the undisputed fact that the two other employees involved in the altercation were also suspended and terminated based on that incident, even though they did not threaten to sue. In sum, the record offered no rational basis for concluding that the nurse—like her two antagonists—was terminated for any reason other than violating her employer’s rule against physical fighting in the workplace. Such a rule was essential for any workplace, but especially for a mental health facility like this.

The case number is 2013 NY Slip Op 00275.

Ifey Ugokwe (Aria Ugo) for Employee. Jean Y. Park (Kelley Drye & Warren) for Employer.

Attorneys:

Companies: Archdiocese of New York

Cases: Discharge EmployeeStatus Retaliation StateLawClaims NewYorkNews

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RETALIATION—WDNC: A female server who claimed she was denied additional shifts in retaliation for having sought legal advice concerning her supervisor’s harassment sufficiently asserted an adverse employment action

By Marjorie Johnson, J.D.

A female server who claimed she was denied additional shifts in retaliation for having sought legal advice concerning her supervisor’s sexual harassment sufficiently asserted an adverse employment action, a federal district court in North Carolina ruled, denying her employer’s motion to dismiss her Title VII reprisal claim (Ortiz v Big Bear Events, LLC dba Angry Ale’s, January 22, 2013, Conrad, R, Jr). However, her constructive discharge claim was dismissed for failure to exhaust administrative remedies. Her intentional infliction of emotional distress (IIED) claim also failed to advance because the conduct alleged did not meet the requirement that it be “atrocious and utterly intolerable in civilized community.”

Server’s allegations. The server asserted that her supervisor subjected her to unwanted physical contact on numerous occasions, including repeatedly touching her on her thigh and buttocks, making sexually humiliating comments, and exposing her to pornography at work. She also claimed that he made lewd comments regarding her practices as a massage therapist, told a customer that she had performed oral sex on him in his office, and requested that all female servers wear degrading T-shirts during their shifts. The server stated that she repeatedly informed management of the supervisor’s sexual harassment.

In June 2010, the restaurant learned that the server had received legal advice relating to the supervisor’s sexual harassment. Thereafter, she was closely monitored and no longer able to pick up additional shifts at the restaurant. On July 8, 2010, she filed an EEOC charge alleging “continuing” discrimination based on sex and retaliation. Following her EEOC complaint, her supervisor accused her of being responsible for a fire, which had forced the restaurant to close.

Adverse action. As an initial matter, the court held that the server’s allegation that the employer retaliated against her by requesting coworkers to monitor her was not the type of severe retaliatory harassment sufficient to constitute an adverse employment action. However, her alleged denial of the opportunity to pick up additional shifts could constitute an adverse action. It was “plausible” that an employee serving in a job with a fluctuating schedule where pay is tied closely to the amount and type of hours worked (and where certain shifts are more remunerative than others), could make a showing that the failure to assign additional shifts effectively subjected the employee to “reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.” The court further ruled that the employee sufficiently alleged facts to suggest a causal link between her seeking legal advice and the adverse action.

Constructive discharge. However, the court dismissed the server’s constructive discharge claim because it was not included in her EEOC charge and, thus, she failed to exhaust her administrative remedies. Notably, although she checked the box for a “continual violation,” she alleged no facts in her EEOC complaint that would suggest that the resulting administrative investigation would include a charge for constructive discharge. She simply did not allege any particular facts in her EEOC complaint to suggest constructive discharge. Thus, the EEOC was not afforded an opportunity to investigate the claims of constructive discharge and the restaurant was not put on notice that they may have to defend against such charges. Accordingly, the server’s constructive discharge claim was procedurally barred.

IIED. The employee was also unable to advance her IIED claim because the alleged behavior—inappropriate touching, offensive comments, exposure to pornography and retaliation for seeking legal advice—was not so extreme in degree to be regarded as “atrocious, and utterly intolerable in a civilized community.” The type of touching alleged, although repeated and clearly inappropriate, did not rise to the level required by law to qualify as “outrageous.” Indeed, the requirement that conduct be “atrocious and utterly intolerable in civilized community” suggested a degree and kind of behavior that differed even from behavior universally regarded as inappropriate and abhorrent. Although the alleged conduct was “lewd” and “wholly inappropriate,” it did not meet this description.

The case number is 3:12-cv-341-RJC-DCK.

Attorneys: Julie Hanna Fosbinder (Fosbinder Law Office) for Employee. David Calep Wright III (Robinson Bradshaw & Hinson) for Employer.

Companies: Big Bear Events, LLC dba Angry Ale’s

Cases: Discharge Retaliation SexualHarassment TortClaims NorthCarolinaNews

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WAGE-HOUR—CLASS ACTIONS—NDAla: Store managers who signed arbitration agreements allowed to join pending overtime class action

By Matt Pavich, J.D.

Store managers at Citi Trends, who signed arbitration agreements with the clothing retailer may join a pending overtime collective action, after a federal district court in Alabama granted conditional certification to a class of store managers who alleged that the retailer failed to pay them overtime for hours worked in excess of 40 per week (Billingsley v Citi Trends, Inc, January 23, 2013, Bowdre, K.)

The retailer’s districts were managed by district managers who, as the store managers’ direct supervisors, coached, counseled, and trained the store managers, although the store managers were the final authorities at their respective stores. Citi Trends has a uniform job description that covered all store managers, but acknowledged that their daily experiences could vary widely. The store managers were classified as salary/exempt and, thus, received no overtime. A group of managers filed suit alleging that the failure to pay overtime violated the FLSA because many of the managers performed jobs that their subordinates performed.

The managers sought class certification and before the plaintiffs had to meet their deadline for filing the Motion for Conditional Certification and Notice, Citi Trends started having company-wide meetings between two corporate representatives and its store managers. At these meetings, with only a few exceptions, the store managers completed fill-in-the-blank declarations about their job duties and signed an arbitration agreement requiring them to arbitrate any claims against Citi Trends.

Class-action procedures. The FLSA allows similarly situated employees to file class action suits and employees who wish to join a class action suit must give written consent to their inclusion in a class. Plaintiffs who seek class actions must demonstrate a reasonable basis for the class-wide harm alleged through detailed allegations. In the Eleventh Circuit, courts are encouraged to review the question of “similarly situated” at the notice stage, when they decide whether notice of the proposed class should be given, and again at the certification stage. In order to prevail on a motion seeking conditional certification of a class, plaintiffs must show that other similarly situated employees desire to opt into the class. Plaintiffs need only show that the proposed class members have similar, not identical, positions.

Notice. The plaintiffs moved for a court-supervised notice to prospective class members. The court held that the meetings between Citi Trends reps and the store managers was a “cause for concern.” In those meetings, the store managers waived their right to join in litigation. The court noted that the employer had an interest keeping the prospective class as low as possible and that, therefore, there was an inherent risk that the meetings would “sabotage” the manager’s “independent decision-making.” Thus, the court granted the motion for a court-supervised notice. Moreover, the court held that any managers who felt pressured into signing the arbitration agreement would be allowed to join the prospective class.

Motion for conditional certification. Citi Trends argued that the plaintiffs could not show that the managers were all similarly situated. The plaintiffs countered that the managers were similarly situated because they were all subject to the exact same company-wide, uniform job description, responsibilities, and pay practices. Moreover, Citi Trends classified all managers as salary/exempt regardless of any difference between the managers and stores. The plaintiffs presented declarations from eight managers that they spent 80 percent of their time on non-exempt duties. Thus, based on the opt-ins, the declarations, and the company’s acknowledgment that the challenged wage practice was a company-wide policy, the court conditionally certified the class.

The case number is 4:12-CV-0627-KOB.

Attorneys: Robert J. Camp (The Cochran Firm) for Employee. Devand A. Sukhdeo (Jackson Lewis) for Employer.

Companies: Citi Trends, Inc

Cases: Labor Arbitration WageHour ClassActions Exemptions AlabamaNews

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WAGE-HOUR—EXEMPTIONS—NDIll: Employees of janitorial service were engaged in domestic service, entitled to FLSA minimum wage and overtime protections

By Ronald Miller, J.D.

Employees of a janitorial service who performed cleaning services at both residential and commercial locations were engaged in domestic service under the FLSA and so were entitled to the minimum wage and overtime protections of the Act, ruled a federal district court in Illinois (Arenas v Truself Endeavor Corp dba Garret/Juarez Cleaning Service, January 23, 2013, Tharp, J, Jr). Nothing that whether employees of a third-party service who perform household services in private homes are covered by the FLSA was a question of first impression, the court held that the employees were covered domestic service employees under the Act. Consequently, 29 C.F.R. Sec. 552.3 should not be construed to limit the definition of “domestic service employees” to only those employees who work in the homes of their employers.

Residential cleaning. Employees of a janitorial service alleged that their employer failed to pay minimum wage and overtime pay in violation of state and federal law. The employees performed cleaning and janitorial work for residential and commercial customers. They were occasionally, but regularly, sent to private residences to perform household cleaning and typically worked eight hours per week cleaning the homes of private individuals. The employees were paid a set hourly rate without regard to the location or type of work they performed or whether they had worked more than 40 hours per week. The employer moved for summary judgment on their wage claims, contending that the facts did not establish that the employees were subject to the requirements of the FLSA.

Employees not engaged in commerce. Under the FLSA, an employee is entitled to a minimum wage and overtime compensation if he is employed in domestic service in one or more households; engaged in commerce or in the production of goods for commerce; or employed in an enterprise engaged in commerce or the production of goods for commerce. The employer argued that it was not an enterprise engaged in commerce because it had annual revenues below $500,000. The employees conceded that point. Consequently, it was left to determine whether the employees were “engaged in commerce” or employed in “domestic service.”

As an initial matter, the court found that the employees were not engaged in commerce, rejecting their contention that they were engaged in commerce because the employer charged customers separately for certain cleaning products. In essence, the employees alleged that their delivery of products manufactured in other states constituted “commerce” within the meaning of the FLSA. However, the employees came down on the wrong side of McLeod v Threlkeld, which held that employees who handle goods after acquisition by a merchant for general local disposition are not engaged in commerce. Here, the employer purchased supplies from merchants who obtained them from out of state. It then required the employees to handle the supplies and distribute them locally. Because the employees’ involvement with goods was purely local, it did not require them to engage in interstate commerce. Thus, the employees’ handling of cleaning supplies did not bring them within the FLSA’s minimum wage and overtime provisions.

Domestic service. With respect to whether the employees were “employed in domestic service,” the employer pointed to 29 C.F.R. Sec. 552.3 to support its argument that because the plaintiffs were employed by it rather than employed directly by the households they were not domestic service employees. On the other hand, the employees relied on statutory language and the Department of Labor’s interpretation of the regulations to argue that they were domestic service employees. Here, the court concluded that, even though the plaintiffs were employees of a third-party employer rather than the families whose private homes they cleaned, they were domestic service employees subject to the FLSA’s protections.

The DOL interprets Sec. 552.3 as only “describing the kinds of work that constitutes domestic service employment and establishing that such work must be performed in a private home, rather than in a place of business.” That interpretation is reasonable, and endorsed by the Supreme Court in Long Island Care at Home, Ltd v Coke, observed the court. That the DOL chose not to create an exemption for all domestic service employees of third-party employers was evidence that it did not intend to exclude from coverage all those who work for third parties, declared the court. Thus, the court denied the employer’s motion for summary judgment on the question of whether the employees were entitled to FLSA protection.

The case number is 12 C 5754.

Attorneys: Carlos Gerardo Becerra (Becerra Law Group) for Employees. Michael Palermo (Palermo Law Firm) for Employer.

Companies: Truself Endeavor Corp; Garret/Juarez Cleaning Service

Cases: WageHour Exemptions MinimumWage Overtime CoverageLiability IllinoisNews

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BENEFITS NEWS—March 1 deadline for compliance with FLSA Sec. 18B notice provisions extended by EBSA

The Employee Benefits Security Administration (EBSA) has announced that the notice requirement of FLSA, Sec. 18B will not take effect on March 1, 2013 as originally planned. In recently-released FAQ’s, the EBSA explained that Sec. 18B requires certain employers to provide each employee, upon hiring, with: (1) a written notice informing the employee of the existence of state exchanges, their services, and contact information; (2) a statement that, if the employer plan’s share of the total allowed costs of benefits provided under the plan is less than 60 percent of such costs, the employee may be eligible for a premium tax credit if he or she purchases a plan through a state exchange; and (3) advice that, upon the purchase of a plan through an exchange, the employee may lose any employer contribution to an offered health plan as well as the opportunity to exclude that contribution from federal income tax. Current employees also were to be given the same notice no later than March 1, 2013.

The EBSA states that until the necessary regulations and/or guidance are actually issued and become applicable compliance with Sec. 18B is not necessary. Guidance may take the form of model, generic language that could be used to satisfy the notice requirement. The EBSA also is considering allowing employers to satisfy the notice requirement by providing employees information based on the employer coverage template found in the preamble of recently-issued proposed regulations. That template would be available for download at the relevant state exchange website.

Integrated HRAs. In the FAQ, the EBSA also details requirements for the compliance of health reimbursement arrangements (HRAs) with Public Health Service Act (PHSA) Sec. 2711, which, as added by the Patient Protection and Affordable Care Act (ACA), generally prohibits the imposition of lifetime or annual limits on the dollar value of essential health benefits by plans and issuers. The interim final regulations implementing Sec. 2711 contained, in the preamble, information on the application of Sec. 2711 to HRAs and other account-based arrangements. HRAs that are integrated with other coverage as part of a group health plan would not violate PHSA Sec. 2711, if the other coverage alone would be in compliance with that section.

EBSA has clarified, however, that an employer-sponsored HRA cannot be integrated with either individual market coverage or an employer plan providing coverage through individual policies, for purposes of complying with PHSA Sec. 2711. An HRA used to purchase coverage on the individual market would not, therefore, be considered to be integrated with that individual market coverage.

Among other advice, the EBSA also states in the new FAQ that it is anticipating that the following will be announced: regardless of whether or not an HRA is integrated with other group health plan coverage, any unused amounts either credited before January 1, 2013, or credited in 2013 under the terms of an HRA as in effect on January 1, 2013 may be used even after December 31, 2013 to reimburse medical expenses without violating PHSA Sec. 2711. However, if the HRA terms as of January 1, 2013 did not prescribe a set amount to be credited in 2013 or did not prescribe the timing of those amounts, any amounts may not be credited at a faster rate than that applied during 2012, nor may they exceed amounts credited for 2012.

Medicare Part D. For those employers that provide Medicare Part D coverage through Employer Group Waiver Plans (EGWPs), the EBSA also is stating that, for EGWPs that only provide coverage to retirees, non-Medicare supplemental drug benefits are exempt from the health coverage requirements of title XXVII of the PHSA, Part 7 of ERISA, and Chapter 100 of the Code. In response to the question of whether or not self-insured prescription drug coverage that supplements the standard Medicare Part D coverage through EGWPs must comply with those health coverage requirements, the EBSA has responded that, pending further guidance, it will not take any enforcement action against a group health plan that is an EGWP just because the non-Medicare supplemental drug benefit does not comply with the health coverage requirements of the above-listed provisions of the PHSA, ERISA, and the Code.

Warnings about “indemnity insurance.” Also exempt, as an excepted benefit, from the health coverage requirements of XXVII of the PHSA, Part 7 of ERISA, and Chapter 100 of the Code, is certain fixed indemnity coverage under a group health plan.

It has come to the EBSA’s attention that the number of health insurance policies labeled as fixed indemnity coverage has risen significantly. Therefore, the EBSA is reminding employers and practitioners that a fixed indemnity insurance policy under a group health plan provides excepted benefits only if all three of the following requirements are met:

  • benefits must be provided under a separate policy, certificate, or contract of insurance;

  • there must be no coordination between the provision and the exclusion of benefits under any group health plan maintained by the same plan sponsor; and

  • benefits must be paid for an event without regard to whether or not any group health plan maintained by the same plan sponsor provides benefits with respect to that same event.

Also, to be considered to be fixed indemnity insurance, the insurance must pay a fixed dollar amount per day or other period of hospitalization or illness regardless of the expenses incurred.

The EBSA points out that situations have come up where a policy is advertised as fixed indemnity insurance, but it covers doctors’ visits at $50 per visit, hospitalization at $100 per day, various surgical procedures at different dollar rates per procedure, and/or prescription drugs at $15 per prescription. Since the doctors’ visits, surgery, and prescription drugs are not paid for on a per-period basis, but, instead, payment is determined based on the type of service performed, that policy would not constitute fixed indemnity insurance, and it would not meet the conditions or excepted benefits.

PCORI fee. Finally, a temporary annual fee, known as the PCORI fee, was imposed on sponsors of certain self-insured health plans by the ACA for plan years ending on or after October 1, 2012 and before October 1, 2019. For certain organizations (MEWAs, VEBAs, and plans established or maintained by two or more employers or jointly by one or more employers and one or more employee organizations), the plan sponsor is the association, committee, joint board of trustees, or other similar groups of representatives that establish or maintain the plan.

The EBSA is advising that, for a multiemployer plan, the plan sponsor liable for the PCORI fee, which would generally be an independent joint board of trustees, would not be prohibited from paying the PCORI fee out of plan assets, since, as the EBSA points out, the board would have no source of funding independent of plan assets with which to pay it.

This is generally not the case, however, for other plan sponsors, such as a group of employers that exist for reasons other than to solely sponsor and administer a plan. Rarely, certain organizations, such as VEBAs that provide retiree-only health benefits where the sponsor is a trustee or board of trustees with no funding independent of plan assets and existing solely to sponsor and administer the plan, could use plan assets to pay the PCORI fee.

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DOL NEWS—Golf company pays more than $750,000 to 347 employees to resolve FLSA violations

Carolina Trail Golf Partners Inc. has paid 347 employees a total of $758,465 in back wages after a Wage and Hour Division (WHD) investigation found violations of the FLSA’s minimum wage and overtime provisions at seven of the employer’s facilities, the DOL announced. The investigation included Charlotte Golf Links, Highland Creek Golf Club, and The Tradition Golf Club, all of Charlotte; Birkdale Golf Club and Skybrook Golf Club in Huntersville; The Divide Golf Club in Matthews; and The Links at Waterford in Rock Hill, S.C.

Investigators found the employer missed several payrolls and employees were issued paychecks five to six weeks late. Employees had received no wages for the hours they worked in pay periods for which a payroll was missed, resulting in minimum wage violations under the FLSA. Additionally, due to the missed payrolls, employees who worked more than 40 hours in a workweek were denied overtime compensation. The employer has agreed to comply with the FLSA in the future, correct all the violations identified by the investigation, and pay the back wages in full.

Companies: Carolina Trail Golf Partners, Inc

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DOL NEWS—Seth D. Harris named Acting Secretary of Labor

Seth D. Harris has been named Acting Secretary of the Department of Labor, replacing the recently departed Hilda L. Solis. The White House has not yet nominated a permanent secretary.

Before joining the DOL as a deputy secretary of labor, Harris worked as the Obama Transition Project’s Agency Working Group Leader for the labor, education, and transportation agencies. He also was a professor and the Director of Labor & Employment Law Programs at New York Law School and served as Chair for Obama for America’s Labor, Employment, and Workplace Policy Committee and Co-Chair of its Disability Policy Committee. During the Clinton administration, he served as Counselor to the Secretary of Labor and Acting Assistant Secretary of Labor for Policy, among other policy-advising positions. Before joining the administration, he was a law clerk for Ninth Circuit Judge William Canby and Judge Gene Carter of the District of Maine. He graduated cum laude from New York University School of Law, where he was Editor-in-Chief of the Review of Law & Social Change. He received his bachelor’s degree from Cornell University’s School of Industrial & Labor Relations.

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DOL NEWS—Wage and Hour Division announces progress in enforcement initiative aimed at employers in North Carolina

The DOL has reported on the progress of the ongoing enforcement initiative conducted by the Wage and Hour Division (WHD) that focuses on the residential care industry in North Carolina. The initiative has found widespread violations of the FLSA’s minimum wage, overtime, and recordkeeping provisions, particularly among group home facilities in the counties of Buncombe, Cumberland, Forsyth, Guilford, Mecklenburg, and Wake. Since 2009, the initiative has collected more than $2.1 million in back pay for 1,800 employees.

Since 2009, the WHD’s North Carolina district office conducted 200 investigations of residential care facilities within its jurisdiction. It also conducted 16 outreach sessions under this initiative in 2012, providing FLSA education and compliance assistance to hundreds of employers, employees, and stakeholders throughout North Carolina.

Common violations found include failing to pay for work performed outside an employee’s scheduled shift or time spent attending staff meetings and trainings; deducting eight-hour sleep periods from shifts of fewer than 24 hours; paying employees a flat salary without regard to overtime; and making illegal deductions for uniforms and other items that cause workers’ wages to fall below the federal hourly minimum wage of $7.25.

WHD has been working with local management entities and the North Carolina Department of Health and Human Services, agencies that monitor or have influence over the business practices of residential care providers. Under the initiative, investigators visit residential care facilities, such as adult care homes, assisted living facilities, and group homes to assess compliance among facility owners, independent and multi-unit operators, third-party management companies, and other businesses associated with these establishments. Investigators undertake thorough reviews of employment practices and payroll records and conduct employee interviews to ensure compliance with all applicable labor standards. When violations are found, the WHD will pursue corrective action, including litigation, civil money penalties, and liquidated damages to recover workers’ wages and ensure accountability under the law.

The WHD is conducting outreach to inform workers of their rights under federal labor laws, and is contacting community organizations, faith-based groups, local and state agencies, and other stakeholders to engage their participation in promoting compliance. The agency is also providing FLSA compliance assistance and education to employers and industry associations.

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EEOC NEWS—Gannett companies, EEOC resolve allegations of disability bias in discharge of employee with bipolar disorder

The EEOC has settled a disability discrimination lawsuit against Gannett Company, Inc. and Gannett Media Technologies, Inc., asserting that the companies fired an employee because she has bipolar disorder, according to an agency announcement on January 24.

The federal agency’s lawsuit alleged that the Gannett companies hired the employee at its Tempe, Arizona, facility as an application support analyst (EEOC v Gannett Co, Inc, DAz, No CV 11-00675-PHX-DKD). After she returned from a medical leave of absence because of her bipolar condition, the companies violated the ADA when they discharged her, the EEOC said. During her employment, according to the EEOC, the employee exceeded expectations and was up for a promotion before she went on the medical leave.

In settling the lawsuit, Gannett agreed to pay the employee $49,900 in compensatory damages and back pay. The two-year consent decree also requires that the companies provide appropriate training on disability discrimination to all their human resources, supervisory, and managerial employees in three states, post a notice, and review and modify their policies to comply with the ADA.

Companies: Gannett Company, Inc; Gannett Media Technologies, Inc

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LABOR BEAT—US Airways reaches tentative agreement with AFA; Hyatt Regency Baltimore reaches settlement with workers fired for union support

US Airways. The Association of Flight Attendants and US Airways have reached a new tentative agreement on a collective bargaining agreement covering 6,800 mainline flight attendants. Details of the agreement will be made available by AFA and, if ratified, the tentative agreement would cover the airline’s mainline flight attendants based at US Airways’ three hub cities of Phoenix, Philadelphia, and Charlotte, N.C., and in its Washington, D.C. focus city.

Hyatt Regency Baltimore. The Hyatt Regency Baltimore has reached a settlement with workers who were fired last summer after allegedly showing support for a union, UNITE HERE. Under the settlement, two fired union supporters will be reinstated with back pay and the discipline assigned to other union supporters and employees will be rescinded. Additionally, the company has agreed to post notice that it will not violate federal labor law, specifying, among other things, that it will not conduct unlawful surveillance of union activities, issue discriminatory discipline, or inform union supporters that they will be removed by the police because they are exercising federal rights.

The settlement comes five days after a hearing in front of an NLRB administrative law judge began. The complaint issued by the federal government resulted from an investigation that began after Hyatt terminated several workers leading an effort to unionize the Hyatt Regency Baltimore in the summer of 2012. Other workers reported being surveilled by Hyatt management and threatened with arrest for leafleting. During the investigation, Hyatt was given an opportunity to present its own witnesses and documents.

Connecticut Light and Power. Connecticut Light and Power (CL&P) announced that its largest labor unions, International Brotherhood of Electrical Workers (IBEW) Locals 420 and 457, have ratified a new four-year contract that will take effect immediately. The agreement contains scheduling improvements to ensure more workers are available to serve customers when needed, while also providing a comprehensive wage and benefits package to employees.

The contract will award annual wage increases of 3 percent, 2.75 percent, 2.5 percent, and 3 percent respectively. It will offer employees choices of new, comprehensive health benefit plans (medical, dental, and vision) and will establish new schedules for workers on shifts to help reduce the amount of unplanned call-ins and ensure employees are available when customers need them most.

IBEW Locals 420 and 457 represent approximately 1,100 CL&P employees working throughout the company’s service territory.

Companies: US Airways; Hyatt Regency Baltimore; Connecticut Light and Power

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LITIGATION NEWS, TRENDS—Lawsuit alleges that WilmerHale law firm terminated attorney who was on adoption leave

Law firm Wilmer Cutler Pickering Hale and Dorr LLP terminated an attorney while she was on adoption leave and denied her the salary increases and bonuses she had earned as an attorney at the multinational law firm, according to a lawsuit filed this week by Sanford Heisler LLP in the Superior Court for the District of Columbia.

The attorney worked at WilmerHale for seven years before the firm fired her in February 2012. During her time at the firm, she was a member of the firm’s intellectual property litigation group, the business litigation group, and investigations and criminal litigation group. The suit contends that the termination violated the attorney’s rights under the District of Columbia’s Family and Medical Leave Act, the Human Rights Act, and common law. It asks for a declaration that the firm’s conduct was unlawful, as well as back pay with interest, reinstatement or front pay, and $5 million dollars in compensatory and punitive damages, attorneys’ fees and costs, and other relief.

According to the complaint, the attorney transitioned to WilmerHale in September 2004 as a 45-year old fourth year associate, where she consistently earned positive performance reviews for her work. She was promoted from associate to counsel in January 2008. However, her promotion prospects dimmed in subsequent years at the firm. Although WilmerHale continued to evaluate her work as exemplary and of excellent quality, the firm never promoted her to partner or special counsel despite her meeting the firm’s criteria for promotion.

The complaint alleges that the attorney’s sex and age were barriers to her upward mobility at the firm. During her seven-year tenure at WilmerHale, allegedly only one female age 50 or older was promoted to partner. The majority of individuals promoted to partner or special counsel at the firm were 40 or younger and WilmerHale terminated a number of older females, including the attorney’s secretary, during this same period of time.

According to the complaint, the attorney went on leave and adopted a 22-month old daughter from China. Shortly thereafter, she received her first negative evaluation at the firm and a substantial reduction in her annual bonus. Eventually, the firm terminated her.

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NLRB NEWS—D.C. Circuit ruling that President lacked authority to make NLRB recess appointments draws mixed reaction

In the wake of today’s ruling by the D.C. Circuit that the 2012 recess appointments made by President Barack Obama to the NLRB were unconstitutional, Board Chairman Mark Gaston Pearce has vowed to continue with the Board’s business.

“The Board respectfully disagrees with today’s decision,” said Pearce in a statement issued after the opinion was handed down, “and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.”

Pearce said that the Board continues to have important work and that it will continue to “perform our statutory duties and issue decisions.”

Richard J. Trumka, president of the AFL-CIO and supporter of the current Board, was considerably less measured in his response. Trumka blasted the decision, which he called “shocking” and “radical and unprecedented.” Trumka noted that the appellate panel was made up of judges appointed by Republicans and expressed the belief that the decision will ultimately be overturned by the U.S. Supreme Court.

Not all responses were negative, of course. Rep. John Kline (R-Minn.), chairman of the House Workforce Committee and fierce critic of the Obama Board, praised the ruling, which he said “affirms our belief that the president’s unprecedented recess appointments violated the Constitution.”

Rep. Phil Roe (R-Tenn.) agreed, saying that the ruling shows that “the president…cannot simply ignore the Constitution. This administration has a habit of bypassing Congress to push their agenda, and I hope this ruling will send a message to the president.”

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NMB NEWS—Nicholas Christopher Geale nominated to NMB

President Barack Obama has nominated Nicholas Christopher Geale, of Virginia, to be a member of the National Mediation Board for a term expiring July 1, 2013, the White House has announced. Geale would replace the recently resigned Elizabeth Dougherty.

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OSHA NEWS—OSHA partnership sponsors safety stand-down kickoff promoting safety and health practices at oil and gas sites in the southeast

In partnership with the National Service, Transmission, Exploration & Production Safety Network, more commonly known as STEPS, OSHA will sponsor a safety stand-down kickoff from Jan. 25 through Feb. 28 to promote safety and health practices at oil and gas exploration and production sites in Arkansas, Louisiana, New Mexico, Oklahoma, and Texas, the safety administration announced this week.

Following today’s STEPS stand-down kickoff, participating companies can choose stand-down training events to take place at their work sites during the month-long event. Some employers have already voluntarily committed to conduct site inspections, document and eliminate hazards, and train workers at oil and gas sites during the stand-down. OSHA will provide training materials and assistance.

STEPS is a volunteer organization founded in 2003 in south Texas by OSHA and the oil and gas industry in an attempt to reduce injuries and fatalities. The organization has grown to include 17 independent networks serving 15 oil- and gas-producing states. Eight of the networks have signed formal alliances with OSHA.

Companies can complete a commitment form and obtain training tools to conduct job site inspections online through the OSHA Education Center at the University of Texas Arlington Web site at http://www.oshastanddown.org.

Companies: National Service, Transmission, Exploration & Production Safety Network

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OSHA NEWS—OSHA releases 2013 targeted inspection plan to protect federal workers

OSHA announced that it has issued its annual inspection plan of federal agency establishments under its Federal Agency Targeting Inspection Program directive for fiscal year 2013. FEDTARG directs programmed inspections of federal agency establishments where a high number of employees have been absent due to injuries they incurred at work.

The directive outlines the procedures for carrying out programmed inspections at these federal worksites. OSHA will inspect all establishments reporting 100 or more cases where a worker is away from work due to injury during fiscal year 2012; 50 percent of those establishments reporting 50 to 99 cases; and 10 percent of those reporting 20 to 49 cases. The FEDTARG13 directive also clarifies how OSHA develops the inspection lists and includes a new standard from U.S Department of Agriculture’s Forest Service.

The inspection targeting program began in 2008 in response to a Government Accountability Office audit report recommending that OSHA develop a targeted inspection program for federal worksites. Executive Order 12196, Occupational Safety and Health Programs for Federal Employees, requires Federal OSHA to “conduct unannounced inspections of agency workplaces when the Secretary determines necessary if an agency does not have occupational safety and health committees; or in response to reports of unsafe or unhealthful working conditions.”

OSHA’s Office of Federal Agency Programs is available to provide leadership and guidance to assist the heads of federal agencies with their occupational safety and health responsibilities.

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STATE LEGISLATION—RHODE ISLAND—Same-sex marriage bill passes House in historic vote

Legislation that would allow same-sex couples to marry in Rhode Island was approved by the House of Representatives, by a vote of 51 to 19, on January 24.

The vote, which was celebrated with cheers by supporters, marks the first time either chamber in Rhode Island has voted on the issue since 1997, when a same-sex marriage bill was first introduced..

Governor Lincoln D. Chafee, who last year signed an executive order requiring all state agencies to recognize same-sex marriages performed in other jurisdictions, also supports the bill and has pledged to sign it if it emerges from the Senate.

The legislation (H 5015 Sub. A) removes sex-specific language from the section of the general laws that governs eligibility for marriage. It inserts language that allows any person to marry any other eligible person, regardless of sex, effective immediately upon adoption of the bill. The measure also contains a provision that allows couples who entered into civil unions in Rhode Island to convert those unions to marriages and automatically converts all remaining civil unions that have not been dissolved by Jan. 1, 2014, into marriages on that date.

Similar legislation (S 0038) has been introduced in the Senate.

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Who’s in the News

Law Firms: AFL-CIO Office of General Counsel | Becerra Law Group | Fosbinder Law Office | Jackson Lewis | Jones Day | Korda, Johnson & Wall | Law Office of Andrew C. Clarke | Law Offices of John R. Shuman, Jr. | Metropolitan Legal Department |Michael P. Healy Attorney at Law | Palermo Law Firm | Pillsbury Winthrop Shaw Pittman | Robinson Bradshaw & Hinson | Stinson & Morrison | Summers & Compton | The Cochran Firm | The Employment Law Firm | Torkildson Katz Moore Hetherington & Harris | U.S. Department of Justice | Vladeck, Waldman, Elias & Engelhard
Companies: Akin Gump Strauss Hauer & Feld, LLP | Allied Signal Technology, Inc | Archdiocese of New York | Big Bear Events, LLC dba Angry Ale’s | Carolina Trail Golf Partners, Inc | Citi Trends, Inc | Coalition for a Democratic Workplace:Sherman and Howard | Connecticut Light and Power | Gannett Company, Inc | Gannett Media Technologies, Inc | Garret/Juarez Cleaning Service | Hostess Brands, Inc | Hyatt Regency Baltimore | Interstate Bakeries Corporation | Marquette University School of Law | Metropolitan Government of Nashville and Davidson County | Mrs. Gooch’s Natural Food Markets, Inc | National Service, Transmission, Exploration & Production Safety Network | Noel Canning (1, 2) | The Noel Corporation (1, 2) | Truself Endeavor Corp | U.S. Chamber of Commerce | United States Postal Service | US Airways