“Prisoners” On Call, March 30, 2011
The Communications Worker of America, frustrated with the lack of progress during negotiations with AT&T, provided employees with “prisoner” t-shirts to wear. The white t-shirts had “INMATE #” on the front. On the back were vertical stripes and bars surrounding a message “PRISONER OF AT$T.” AT&T prohibited only employees who were involved with making customer service calls from wearing the shirts and ultimately suspended 183 of the employees who wore them on service calls anyway. AT&T argued that the “prisoner” t-shirts could cause customers concern over worrying that an inmate was in their home, rather than AT&T employee. The NLRB did not buy into the company’s argument, and ordered the company to rescind the suspensions and repay any lost wages or benefits. NLRB member Hayes dissented, providing the sole voice of reason, and recognized the legitimate basis that AT&T would have for preventing its employees from entering customer homes wearing apparel suggesting the person was a convict.
Largest Class Ever, March 30, 2011
Yesterday, the U.S. Supreme Court heard the oral argument in Wal-Mart Stores, Inc. v. Dukes, a case which Wal-Mart appealed to the Supreme Court after the Ninth Circuit issued a decision certifying the largest class size ever in an employment discrimination case. The size of that class: approximately 1.5 million female current and former employees, all of whom hold or held a variety of different positions throughout the 3400 stores within the United States. The Ninth Circuit (and the courts below it) upheld the certification of this excessively large and varied class of employees, based on evidence that the plaintiffs were able to introduce suggesting a corporate policy and pattern of discrimination imposed on female employees everywhere. The common corporate policy at issue: Wal-Mart’s common corporate culture that allegedly epitomizes sexual stereotypes, combined with in-store managers having free reign to make personnel decisions. The questions from the bench attacked both sides of the argument. There was not a clear indication which way the Supreme Court would rule. Stay tuned for developments.
Now, We Are All Disabled, March 28, 2011
Last week, the Equal Employment Opportunity Commission (EEOC) issued its long awaited regulations on the Americans with Disabilities Amendments Act of 2008 (ADAAA), the legislated passed a few years ago that broadened the scope and protections afforded to “disabled” individuals in the workplace. The new regulations become effective May 24, 2011. While there will be an in-depth article analyzing these regulations in our next newsletter, for now, here are some unexpected regulations to look forward to:
The new regulations contain a list of impairment that will “virtually always” be covered by the ADA (including autism, cancer, diabetes, epilepsy, and a variety of mental health conditions)
Any impairment, no matter its duration, can be a covered disability (meaning that temporary impairments that are expected to last less than six months may still be a disability)
Employers will be required to reasonably accommodate those with a record of disability, absent undue hardship
Supreme Court To Hear Wal-Mart Class Action Lawsuit, March 25, 2011
The Supreme Court is set to hear on Tuesday arguments in Dukes v. Wal-Mart. At issue is whether the plaintiffs can proceed with a nationwide class consisting of female Wal-Mart workers. The District Court and Ninth Circuit have both said yes. Wal-Mart contends that the claims of female employees nationwide are too diverse to justify class certification. It remains to be seen what the Supreme Court will make of plaintiffs’ attempts to certify such a large class. It is no secret that the Supreme Court has been perceived as being in favor of corporations and against large class actions.
Justice Department Would Rather Allow A Teacher To Go To Mecca Than Teach, March 24, 2011
The Washington Post reported yesterday that the Justice Department has filed a civil rights lawsuit against a small school district in Illinois that refused to allow a Muslim teacher three weeks off to take a pilgrimage to Mecca. According to the Post, the teacher, who had only been teaching at her school for nine months, asked to be given three weeks off to travel to Mecca during a critical time at the end of the semester. Not surprisingly, the school district said no.
A reasonable person might assume that a teacher should be teaching for three weeks during the end of a semester, instead of taking three weeks off. Not the Obama administration, which claimed that the school district’s decision was outright discrimination. While employers do have to make reasonable accommodations for a person’s religious beliefs, this begs the question: At what point does a reasonable accommodation become ridiculous?
Supreme Court Rules That Oral Complaints Suffice Under FLSA, March 23, 2011
On March 22, 2011, the Supreme Court ruled that an employee’s oral complaints to an employer constituted a protected activity under the Fair Labor Standards Act (FLSA). The Court ruled in favor of Kevin Kasten, who worked for Saint-Gobain Performance Plastics Corporation between 2003 and 2006. During that time, he had received several warnings from Saint-Gobain regarding improper clocking in and clocking out. Eventually, Saint-Gobain terminated him.
Kasten filed suit against Saint-Gobain under the FLSA, alleging retaliation based on his verbal complaints to Saint-Gobain about the location of the time clocks. While the District Court and the Seventh Circuit ruled that those complaints must be made in writing, the Supreme Court disagreed. It ruled that “filed” under the FLSA’s anti-retaliation provisions encompasses a broad interpretation that includes oral, as well as written, complaints. The Court did not address whether such complaints must be made to the government or whether complaints made only to the employer warrant protection.
Cow Manure Suit Against Union May Proceed, March 18, 2011
For eight years, the Hotel and Restaurant union in Chicago has been trying to unionize the Congress Hotel. The union has engaged in many unusual tactics to harass the hotel, including sending a heart-shaped box filled with cow manure to hotel patrons. The hotel sued, claiming the box of manure constituted illegal coercion under the National Labor Relations Act. The court recently denied the motion to dismiss. So, the cow pie case will go forward.
Man Bites Dog, Crazy Arbitrator Reversed by Court, March 16, 2011
Arbitrators, like kids, do the darnedest things. Unfortunately, crazy, mean, dishonest, or otherwise incompetent arbitrators do real damage. An arbitration award is so hard to get a court to overturn, even when the award is so stupid and dishonest that every judge on the panel squirms, that buying lottery tickets has a better chance of success.
A brave federal court in Pennsylvania, however, has hit all 7 numbers in an arbitration lottery. An arbitrator had held that a Pennsylvania hospital violated a collective bargaining agreement by implementing a “tobacco-free campus” policy. The policy prohibited employees, including the unionized employees, from smoking anywhere on hospital property.
The arbitrator found that those employees had come to expect designated smoking areas, and that this was a protected local working condition. As a result, the arbitrator ordered the hospital to provide designated smoking areas.
The court, rather than doing what most courts do and say something like “the decision draws its essence from the collective bargaining agreement,” found that nothing in the agreement suggested that there were “protected local working conditions.” The court vacated the award. Armstrong Cnty. Mem'l Hosp. v. United Steelworkers, No. 10-2495 (3rd Cir., March 14, 2011).
While we applaud this Court for the decision, such courage seems to fail other courts confronted with equally ridiculous arbitration decisions. We hope this is a trend.
NLRB Wants Back Pay Higher, March 15, 2011
The Acting General Counsel of the National Labor Relations Board wants the NLRB to reverse decisions of the Bush Board (1) requiring employees to seek work within two weeks of being fired and (2) adopting rules on interest on back pay that were more favorable to employers. The current NLRB, which is packed with labor appointees, will probably comply.
Sorry Boss, No Tips for You, March 15, 2011
Under the Fair Labor Standards Act, certain tipped employees may be paid less than the minimum wage if they receive sufficient tips. If the employer takes any of those tips, the right to pay less than minimum wage normally disappears. A federal court in Baltimore has ruled that a “working owner” who shares in the tips of other bartenders in his tavern is “taking” tips, and is therefore not eligible to use the tip credit to reduce his minimum wage obligations. Gionfriddo v. Jason Zink LLC, No. 09-01733 (D. Md., March 11, 2011).
High School Coaches are Volunteers, Not Employees, for Overtime Purposes, March 15, 2011
A federal appeals court in Richmond, Virginia, has ruled that high school coaches who receive paid time off, a nominal coaching fee, and expense reimbursement are still volunteers, not employees, for overtime purposes. The court’s panel, which included retired Justice Sandra O’Connor, denied an employee’s request for overtime for the hours he spent coaching golf. Purdham v. Fairfax Cnty. Sch. Bd., No. 10-1048 (4th Cir., March 10, 2011).
The court found that the coach could have quit at any time without affecting his employment, and it found irrelevant that the school system had once paid overtime for coaches (the discontinuation of which probably caused the coach to sue). It should be kept in mind, however, that the rules on employees volunteering after hours do not always result in a finding of no overtime. If you have employees volunteering after hours, check to make sure the circumstances warrant no additional pay. In many cases, additional compensation, including overtime, is required.
The Cost Of Government Unions, March 11, 2011
Amidst the swirl of rhetoric and pejorative exchanges that accompany the current furor over the role played by public sector unions, simple examples of the problems they bring upon government coffers are not often employed. Recently, one branch of the United States Department of Justice implemented a program that allowed for bonuses upon exemplary performance. For obvious budgetary reasons, the number of bonuses was limited. Dutifully, the union representing employees filed a grievance asserting that any employee with above average performance should get a bonus, not just the few highest rated. The dispute was processed to arbitration where the union won. The increased costs of removing management standards promised to be high. The arbitrator did not care, writing that the award might "result in a large number of employees entitled to remuneration by the Agency in [a] substantial dollar award . . . ." Still, he continued, the union process "demands nothing less." That is one example of why certain government employers are trying to roll back representation.
Confederacy Of Medical Dunces, March 9, 2011
While the media report about the Obama administration's ineffective executive action, labor and employment professionals reel from blast after blast of incoming bureaucratic fiat. Even though this writer has not had even one client care genetic issues among employees in some 31 years of practice limited exclusively to labor and employment, the government is ahead of the curve in "making sure" that never takes place. Implementation of the [entirely unnecessary] Genetic Information Nondiscrimination Act is the government's answer.
The GINA regulations provide that if an employer asks its employees as part of a wellness program about medical history, it must add:
- In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.
Indeed, that even means that if an employee announces that she just learned her mother has cancer, supervisors and managers cannot ask about it, compassion be damned.
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