January 2011 Quick Clips

And the Beat Goes On, January 28, 2011

President Obama’s desire to “mend fences” with the business community has hit a bump. The President has resubmitted the name of Craig Becker, former lawyer for the Service Employees International Union, to the Senate to be a member of the National Labor Relations Board. Becker, who is serving as a recess appointment to the Board, is very unpopular in the business community because of his view that it should be easier for unions to organize workers.

In addition, several states have responded to a letter from the National Labor Relations Board with defiance. Those four states enacted laws that required secret ballot elections before a company could be unionized, despite past federal decisions allowing voluntary recognition based on union authorization cards. The NLRB wrote the states, reminding them that federal law trumps state law on matters of labor relations. The states, however, were not impressed with the reminder and have vowed to defend their “secret ballot” laws. Those laws were passed in response to attempts to curtail secret ballot elections under the so-called Employee Free Choice Act.

Retaliation Claim Permitted Even Though Plaintiff Did Not Engage In Protected Activity, January 25, 2011

by Randi Klein Hyatt

Yesterday, the U.S. Supreme Court issued a unanimous decision holding that a Title VII retaliation claim may be maintained by an individual who did not engage personally in any protected activity, so long as the adverse action taken against that person was done to discourage someone else from engaging in protected activity (indirect, secondary retaliation if you will).

While there will be an in-depth article on this case coming out in the next K&S newsletter, here are the few take away points from the case (Thomspon v. North American Stainless, LP). Eric Thompson and his fiancé, Ms. Regalado, both worked for NAS. Ms. Regalado filed a sex discrimination charge with the EEOC. Three weeks later, NAS fired Mr. Thompson (not Ms. Regalado). Mr. Thompson then sued NAS alleging he was discharged in retaliation for his fiance’s EEOC charge. The trial court said no retaliation. Mr. Thompson appealed. The Sixth Circuit said no retaliation. Mr. Thompson appealed. The Supreme Court said yes retaliation. The Court disagreed with both lower courts and held that Thompson was a person aggrieved because he fell within the zone of interests protected by Title VII: as an employee of NAS, Title VII’s purpose was to protect employees from employers’ unlawful actions and by firing him, NAS was punishing Ms. Regalado.

Supreme Court Allows Background Checks Of Contract Employees, January 24, 2011

by Michael R. Severino

On January 19, 2011, the Supreme Court affirmed NASA’s comprehensive background checks of its low level contract employees. (Readers of this blog with long memories may recall that this case was noted here in March 2010.) The Court ruled that the government’s inquiries, which involved questions regarding past criminal acts and drug history, were narrowly tailored and thus did not offend the workers’ rights to informational privacy. The Court left the exact contours of those rights (if, in fact, they exist in the first place) for another day. (NASA v. Nelson, no. 09-530)

Don’t Use Your Employer’s E-Mail To Communicate With Your Lawyer, January 20, 2011

by Michael R. Severino

An appellate court in California recently ruled that e-mail communications sent by an employee to her attorney on her employer's e-mail system are not privileged. Amazingly, the employee used her company's e-mail to discuss suing her employer.

In Holmes v. Petrovich Development Company, the court ruled that e-mails between the employee and her attorney were not privileged because (a) the employee had been advised of the company's policy that computers were to be used only for business purposes and that employees were prohibited from sending or receiving personal e-mail, (b) employees had been warned that the company would monitor e-mail and that it might inspect e-mail at any time, and (c) the employee had been warned not to expect any right to privacy when using company computers for personal reasons. The court noted that while e-mail communications may be privileged, the specific facts of this case demonstrate that the e-mails "were akin to [the employee] consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."

Sometimes the obvious isn't so obvious. (Holmes v. Petrovich Dev. Comp., LLC, California Third Appellate District, filed 1/13/11)

NLRB Threatens To Sue Four States Over Union Elections, January 18, 2011

by Michael R. Severino

In another boon to unions, the National Labor Relations Board has threatened to sue Arizona, South Carolina, South Dakota and Utah in order to prevent the application of recently enacted state constitutional amendments relating to union elections. The amendments require secret ballot elections for union representation and effectively eliminate the card check method of organizing. In letters dated January 13, 2011, the NLRB advised the states of its position that the subject amendments conflict with federal law guaranteeing employees the right to organize by means other than secret ballot. The NLRB also authorized the filing of lawsuits against the states if necessary. It is likely that the states will not capitulate and this will be fought in the courts.

Don’t Bother Us with That Case, January 13, 2011

by Frank L. Kollman

A federal appeals court has ruled that a supervisor’s claim of wrongful discharge cannot be brought under state law because his exclusive remedy is under the National Labor Relations Act. Lewis v. Whirlpool Corp., No. 09-4231 (6th Cir., January 12, 2011). The supervisor had claimed that he was fired for not firing two employees for union organizing, which would have been a violation of federal labor law.

Most states have a cause of action for wrongful termination based on an employee’s refusal to violate the law. The termination, under those circumstances, is considered contrary to “public policy.” The court in this case, however, pointed out that the law Lewis was allegedly asked to violate has remedies for supervisors who are fired for refusing to commit an unfair labor practice, even though supervisors normally are not protected under the NLRA. In fact, Lewis had gone to the NLRB to complain. The Board found his claims, on the evidence, meritless.

Yeah, But Does it Work? January 12, 2011

by Frank L. Kollman

Government regulators like to measure their success by the number of enforcement actions they bring against companies subject to regulation. Last year, the Obama administration collected a record number of penalties and fines from employers who failed to prepare I-9’s properly. The I-9 is a document that must be completed upon the hire of a new employee to confirm his legal status to work in the United States.

In fiscal year 2010, ICE agents recovered record penalties of $6.9 million from businesses compared with $1.03 million the prior year. Analysts are questioning, however, whether this increased enforcement is reducing the amount of illegal immigration. Apparently, that data is not available.

So, it appears that our immigration laws are sources of revenue for the government, not effective laws for dealing with illegal immigration. Perhaps an analysis should be done to see if all the lawsuits and fines collected to enforce the other labor and employment laws are effective in accomplishing anything other than revenue to the government and former employees.

President Rewards More Union Friends, January 12, 2011

by Frank L. Kollman

The new head of the government printing office is a former vice president of the Communications Workers of America, a labor union. Appointed by the President on April 19, he has been sworn in as CEO of GPO. Apparently, being national president of the International Typographical Union makes him qualified to run one of the largest printing companies in the world.

Social Norm Insufficient Reason For Drawing Race-Based Distinctions, January 7, 2011

by Clifford B. Geiger

At about the same time it was announced that the N-Word will be removed from a new edition of Mark Twain’s "The Adventures of Huckleberry Finn," the U.S. District Court for the Eastern District of Pennsylvania was asked to decide whether an employer can be liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to use the N-word, but it is not acceptable for whites to use the same word. (Burlington v. News Corp., E.D. Pa., No. 09-1908, 12/28/10). The plaintiff in this case, Thomas Burlington, is a white television reporter who was suspended and eventually discharged following his use of the N-word during a newsroom editorial meeting. Burlington survived a motion for summary judgment by producing evidence that black coworkers who used the same word did not suffer adverse employment action. The court reasoned, “When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans.”

You can read the court’s entire opinion at http://www.paed.uscourts.gov/documents/opinions/10D1325P.pdf

Employee Fired For Thinking About Blowing Up Supervisor, January 7, 2011

by Clifford B. Geiger

Sometimes it is difficult to understand what people are thinking when they decide to sue. Alonza Baker is a Vietnam veteran who worked for Philadelphia’s Commission of Human Relations. Baker was laid off because of budget constraints. After claiming that he was laid off because of his race, Baker was reinstated by the civil service commission for other reasons. But before Baker was reinstated, he told his counselor that he could blow up a supervisor by using a Vietnam War era explosive that he kept at his home. Baker feared he might act on this thought, so he asked his counselor to help him dispose of the explosive. The counselor called the police, who removed the explosive from Baker’s home and charged him with reckless endangerment. After learning of the incident, the City of Philadelphia terminated Baker’s employment because the supervisor was extremely afraid and honestly believed that Baker posed a serious threat. Baker sued for race discrimination and retaliation under Title VII. Evidence that the supervisor disliked Baker was insufficient for these claims to survive. The evidence showed that Baker was fired because he considered blowing up a supervisor.

Kerry Proposes New Law Requiring Employers To Make More Religious Accommodations, January 4, 2011

by Clifford B. Geiger

On December 17, 2010, Senator John Kerry introduced the Workplace Religious Freedom Act (S. 4046). If passed, the bill would amend Title VII of the Civil Rights Act of 1964 to promote more religious accommodations in employment practices, specifically in the area of garb, grooming, and scheduling. The bill would add detail to current definitions by specifying that religious observance and practice protected by Title VII includes taking time off from work to participate in religious observances, as well as wearing religious clothing or a religious hairstyle. Wearing religious clothing would be further defined as wearing religious apparel, jewelry, or other objects, as well as carrying objects, if doing so is part of the religious faith of the individual. Wearing a religious hairstyle refers to the presence, absence, or style of an individual’s hair or beard.

While fine tuning definitions may provide employers some additional guidance on what is protected, another other change would have much more of an impact. An employer currently may deny an employee’s request for a religious accommodation if granting the accommodation will create an undue hardship. An employer may show an undue hardship by demonstrating the accommodation would require more than de minimus cost. In this context, employer costs include not only direct monetary costs (e.g., payment of premium or additional wages) but the impact on the employer’s business (e.g., diminished efficiency in other jobs, impairment of workplace safety, coworkers carrying accommodated employee’s share of burdensome work, etc.).

The Workplace Religious Freedom Act would dramatically change the standard for employers to show undue hardship. The bill provides that an accommodation “shall be considered to impose an undue hardship on the conduct of the employer’s business only if the accommodation imposes a significant difficulty or expense on the conduct of the employer’s business when considered in light of the relevant factors set forth in section 101(10)(B) of the Americans with Disabilities Act of 1990.” The change from “more than de minimus” to “significant difficulty or expense” would make it much more difficult for an employer to show that a requested accommodation creates an undue hardship.

There Is No Such Thing As A Full Release, January 1, 2011

by Peter S. Saucier

Business owners unsteeped in the absurdities of employment law often call to ask that we prepare a waiver and full release of liability. Normally, the employer has decided to pay a substantial severance amount, in exchange for which he reasonably expects to end the relationship completely. It is difficult for attorneys to explain that no amount of language can ensure against a future lawsuit. Two articles in today's legal news illustrate the problem.

In Mississippi, an employer paid $23,000 in severance to a departing employee who signed a full release and promise not to sue. The employee promptly thereafter sued for $19,000 more based upon a wage claim. The employer answered that the release was binding, and that the $23,000 was a setoff if any money was due. A federal appellate court disagreed on both issues. The employer may keep the $23,000 and sue for $19,000 more. The payment and full release are of no consequence.

Meanwhile, in California, an employee accepted severance with a full release, then sued for disability benefits. Again, a federal court found that the full release, duly paid for, did not forestall the lawsuit.

So, when we tell you that we can prepare the release, but it may not be binding, please try to understand as we explain. This is the universe in which we operate.

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