That’s Not Physical Therapy, September 29 2009
The jury believed the female physical therapist who alleged a male doctor repeatedly hugged and kissed her at work, and awarded her $100,000 for the doctor’s sexual harassment. The employer sought a reduction in the award, claiming that the harassment was not severe and pervasive, and that it took prompt remedial action to end the hostile work environment. The court denied the employer’s motion, finding that there was a two month lag between the complaint and any action taken – and that the action taken was only to suggest to the doctor that he undergo voluntary counseling. Moral of the story? (1) Make sure your employees are not engaged in inappropriate behavior; (2) immediately stop them when they are; and (3) take disciplinary action against an offending employee no matter who he or she is.
Sheriff v. Midwest Health Partners, P.C., No. 8:07-CV-475 (D. Neb. September 16, 2009).
Massachusetts Governor Orders Boycott Of Hyatt Hotels, September 25 2009
by Eric Paltell
As a general rule, senior elected officials try to stay out of personnel disputes involving private sector employers. However, Massachusetts Governor Deval Patrick recently decided to immerse the Commonwealth of Massachusetts and its employees in the midst of a labor dispute involving Hyatt Hotels. The Governor's intervention is especially disturbing, coming at a time when the hospitality industry is facing difficult economic conditions because of the down turn in the economy.
The issue concerns a decision by Hyatt Hotels to outsource the work of 98 housekeeping employees at three Boston-area hotels. Although the employees were not unionized, they were paid union scale wages of $15.00 per hour. Faced with a dramatic downturn in business, Hyatt chose to bring in contract housekeepers who were paid $8.00 per hour with no benefits to replace these individuals. The hotel workers union, UNITE HERE, rallied to the support of the discharged workers and called for a boycott of the hotels.
On September 22, 2009, Governor Patrick stepped into this dispute by notifying Hyatt that he intended to issue a directive prohibiting state employees from using Hyatt hotels when traveling or for other purposes. Although the Governor stated that he understood there were financial reasons for the outsourcing, he decided to play judge and arbitrator, stating that the terminations violated the standards of "basic fairness" and concluding that he "did not believe that any other remedy then full reinstatement is adequate."
Hyatt expressed its "disappointment" in the Governor's action. The hotel had already paid severance pay to the workers, and had also agreed to extend their healthcare coverage through the end of the year and assist them in finding other jobs. Hyatt indicated that this action could further jeopardize the jobs of the 600 employees who remained working at the hotels.
Arbitrator Reinstates Cursing Employee, September 25 2009
by Eric Paltell
As any of our clients who have been through a labor arbitration know, it can be an unpredictable process, fraught with risks for both unions and employers. Indeed, even where an arbitrator finds an employee guilty of the very misconduct for which he was disciplined, arbitrators will not hesitate to reduce the disciplinary penalty. This point was recently brought home to a Safeway store in Danville, California, when an arbitrator reinstated an employee who had repeatedly cursed out her manager. Safeway, Inc., 120 6 L.A. 1249 (Staudohar 2009).
The case involved a ten year employee of Safeway Store No. 1211 in Danville, California. Two days before Thanksgiving in 2008, the grievant was working at the "quick check" register, handling customers with less than a certain number of items to check out. When the grievant became impatient about her upcoming break, she asked another clerk to cover her register and left to take a restroom break and to purchase a pizza stick and a cup of tea. When she returned to her register, she was told to report to the manager's office.
When she got to the manager's office, her manager explained to her that restroom breaks are normally only to be taken during regular breaks and lunch periods. Grievant responded by asking her manager "were you born a prick?" When her manager told her she was being insubordinate, grievant responded with "well fuck you then." Suffice it to say that Safeway did not find this conduct to be appropriate, and the grievant was discharged.
Since the grievant was represented by United Food and Commercial Workers, the union grieved her termination. The arbitrator found there was no doubt the grievant had used the language at issue, and also found that she was insubordinate. The arbitrator also found that she was not treated any differently then any other employee, and found that insubordination could be grounds for discipline, up to and including discharge, under the parties' collective bargaining agreement. Nevertheless, the arbitrator reinstated the grievant, finding that her ten year history of good employment and stress caused by the fact that it was the one year anniversary of her father's death excused her behavior. The arbitrator did throw something of a bone to Safeway, finding that she was not entitled to any back pay for the nine month period that she was out of work.
The Safeway decision is a reminder to employers of the risks of taking cases to arbitration. Although an arbitrator may find the employees guilty of misconduct, was treated the same as other employees, and that termination is an allowable penalty under the agreement, an employer may still be required to bring the employee back to work. This is especially true when a relatively long service employee has a good employment history as was the case here. For these reasons, an employer who is considering discharging a longer term unionized employee must take care to build as strong a case as possible before proceeding to arbitration.
ADAAA Rules Proposed by EEOC - Comments from Public Due by November 23, 2009
When the Americans with Disabilities Act Amendments Act (ADAAA) took effect last January, it was clear that the EEOC would have to rewrite many of its regulations and interpretive guidance in order to implement the changes to the law. On September 16, the Commissioners voted on proposed changes, which were published in the September 23 Federal Register. The public has 60 days to submit comments.
Among the changes: expansion of the current EEOC definition of “substantially limits.” A limitation need not “significantly” or “severely” restrict a major life activity to qualify. An impairment is a covered disability “if it ‘substantially limits' the ability of an individual to perform a major life activity as compared to most people in the general population.” Also changed is the definition of “major life activities.” Two lists of activities and bodily functions are provided, but considered non-exhaustive. The proposed regulations state that “An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life” to have a covered disability under the revised regulations.
According to the notice: Written comments should be submitted to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. As a convenience to commenters, the Executive Secretariat will accept comments transmitted by facsimile (“FAX”) machine. The telephone number of the FAX receiver is (202) 663-4114. (This is not a toll-free number.) Only comments of six or fewer pages will be accepted via FAX transmittal to ensure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not toll-free telephone numbers.) You may also submit comments and attachments electronically at http://www.regulations.gov, which is the Federal eRulemaking Portal. Follow the instructions online for submitting comments. Copies of comments submitted by the public will be available for review at the Commission’s library, 131 M Street, NE, Suite 4NW08R, Washington, D.C. 20507, between the hours of 9:30 a.m. and 5:00 p.m. or can be reviewed at http://www.regulations.gov.
Have No Fear, AFL-CIO Is Here, September 18 2009
On September 15, delegates to AFL-CIO’s convention approved resolutions providing a strategy for restarting the economy and creating and sustaining jobs. According to New York State AFL-CIO President Denis Hughes, the plan requires: (1) fair value for fair work; (2) investment in America; (3) creating a “global fair deal;” and (4) regulating the financial system.
First, not surprisingly, in meeting the requirement of fair value for fair work, AFL-CIO is asking for the proposed Employee Free Choice Act’s passage, restoration of the Humphrey-Hawkins Act’s full employment goal, raising the minimum wage, strengthening the Family and Medical Leave Act, and the passage of the Healthy Families Act (providing employees with paid sick leave).
Second, the plan calls for investment in infrastructure, green jobs, transportation, and education and skills. However, Hughes explained that such investment will not provide good jobs unless accompanied by a strong buy-American provision. Hughes also noted that the country’s manufacturing capacity must be rebuilt and modernized. Acknowledging that such public investment requires additional revenue sources, the federation is, naturally, asking for a financial transaction tax to meet such need.
Third, Hughes emphasized that the global component of the economic collapse must be considered. Until the existing trade law record has been properly looked into, trade agreement negotiations must be halted. Hughes also demanded regulation of the financial markets. With that in mind, AFL-CIO recently joined the liberal organization Americans for Financial Reform. Together, these organizations believe they are the key to repairing the financial sector.
Last, delegates at the meeting have now found a way where they can get the labor movement to pressure local, state, and federal governments to draw up policies geared at putting unemployed and underemployed people back to work. By creating a Works Progress Administration jobs program, ala 1930’s, to rebuild the manufacturing sector, roughly 7 million workers would supposedly find work immediately.
Recovering Brain Surgery Patient Allowed to Pursue Disability Claim under ADA, September 17 2009
In Primmer v. CBS Studios, Inc., No. 08-9422 (S.D.N.Y., September 8, 2009), Erin Primmer, a television producer for the “Montel Williams Show,” suffered a brain aneurysm two years after she commenced employment with CBS. Ms. Primmer remained in the hospital for nearly three weeks but did not resume full time work. Roughly a month after leaving the hospital, she was called to a meeting where she was informed that CBS needed someone better able to handle stress and who was able to perform better. CBS consequently terminated her employment. Ms. Primmer sued CBS, alleging she was terminated in violation of the Americans with Disabilities Act of 1990 (“ADA”).
While Ms. Primmer did not hold herself out to be disabled, the court ruled that her case fell within the ADA parameters because CBS wrongly regarded her to be disabled. The court explained that “a regarded as disabled” claim does not focus on whether an employee actually had a disability, but instead on the employer’s perception of the employee. This, the court said, is a matter of intent.
The court held that Ms. Primmer had presented sufficient evidence to show that CBS had regarded her as being ‘substantially limited’ in working as a television producer. Specifically, the court found that Ms. Primmer had set forth sufficient evidence to show that after returning from surgery, she had suddenly been treated differentially and her contract was terminated. CBS argued that the termination had been in the works for a long time, and that the show’s star, Montel Williams, had requested that CBS terminate Ms. Primmer more than a half year prior to the actual termination. CBS answered that it had not acted on the request because it was unwilling to pay out Ms. Primmer on her remaining contract.
While the result may seem troubling, the court explained that it is not allowed to resolve fact issues or weigh evidence at the summary judgment stage, and that the case at point typifies the classic “who said/did what” scenario. A trial set for later this year will determine if CBS chose not to renew her contract because of her perceived disability.
4th Circuit Denies Motions to Block Federal Contractor E-Verify Mandate, September 11, 2009
Following a failed attempt by business interest groups to obtain injunctive relief, it appears that E-Verify is here to stay. The rule, which requires federal government contractors to verify the work authorization of all new hires and existing personnel assigned to perform work on future federal contracts, was challenged by the United States Chamber of Commerce and several other business groups as being harmful to businesses. On September 9, 2009, the U.S. Court of Appeals for the Fourth Circuit denied a motion for an injunction to halt implementation of a rule requiring federal contractors to use E-Verify (Chamber of Commerce of the United States of Am. v. Napolitano, 4th Cir., No. 09-2006, 9/9/09 ). The rule requiring federal contractors to use E-Verify, the federal government's electronic employment verification program, took effect Sept. 8 after a federal district court in Maryland also declined to stay the rule (Chamber of Commerce of the United States of Am. v. Napolitano, D. Md., No. 8:08-cv-03444-AW, 9/4/09). The U.S. District Court for the District of Maryland August 26, 2009 upheld the rule, granting a motion for summary judgment filed by the government in a case brought by several business groups including the U.S. Chamber of Commerce. After the injunction was denied at the district court level, the business groups filed a motion for an injunction pending appeal with the Fourth Circuit. In the motion the business groups made arguments similar to those denied by the district court. The Fourth Circuit declined to stay the rule in its two-page order.
Proposed Rule Would Require Employers To Advertise Employees’ Rights Under NLRA, September 11, 2009
As you may recall, President Barack Obama signed Executive Order 13496 on January 30, 2009, entitled ‘‘Notification of Employee Rights Under Federal Labor Laws.’’ 74 FR 6107 (February 4, 2009). The stated purpose of the Order is ‘‘to promote economy and efficiency in Government procurement’’ by ensuring that employees of certain Government contractors are informed of their rights under Federal labor laws. (See Sec. 1.), although the real thrust behind the order was to revoke Executive Order 13201, signed by President George W. Bush on February 17, 2001. Bush’s Executive Order required federal contractors to post a notice informing employees that they could not be required to become members of a union and that nonmembers who are required under a collective bargaining agreement to pay an “agency fee” to a union could object to the use of their agency fees for purposes unrelated to collective bargaining, contract administration, and grievance adjustments.
On August 3, 2009, the Labor Department's Office of Labor-Management Standards proposed requirements for federal contractors and subcontractors to notify their employees of their rights under the National Labor Relations Act. The proposed rule, which can be found in the Federal Register at 29 C.F.R. § 471 subchapter D, would require contractors to agree to conspicuously post a notice informing their employees of their rights under federal labor laws. Comments on the proposed rule, aimed at prescribing the size, form, and content of the notice that must be posted by a contractor, must be received within 30 days of its publication. A natural byproduct of the proposed rule is the prospect of increased union membership. The proposed Rule itself states that “the Department estimates that this rule will affect 65,288 small Federal prime contractors.” Proposed sanctions for failure to adhere to the new rules are severe, as the Assistant Secretary may “(1) Direct a contracting agency to cancel, terminate, suspend, or cause to be canceled, terminated or suspended, any contract or any portions thereof, for failure of the contractor to comply with its contractual provisions as required by section 7(a) of Executive Order 13496 and the regulations in this part” or “(2) Issue an order of debarment under section 7(b) of Executive Order 13496 providing that one or more contracting agencies must refrain from entering into further contracts, or extensions or other modification of existing contracts, with any non-complying contractor.”
To directly link to the proposed rule, click here.
EFCA Update- Sen. Specter Declares Support for Cloture On Modified Version, But Senate Vacancy Forces Mass. Governor to Consider Change of Succession Law, Again, September 11, 2009
Pennsylvania Senator Arlen Specter, who has long voiced opposition to the current version of the Employee Free Choice Act, has said he would support a cloture vote on a modified version of the bill in an effort to reach a compromise. A successful cloture vote of 60 votes would allow the debate to begin on the Senate floor. Not surprisingly, Sen. Specter did not describe what a "modified version" of the EFCA would look like, and opponents of the reform movement were quick to criticize any of the known amendments to the current version. Seen as a potential turning point in the fight to enact EFCA, Sen. Specter’s announcement was temporarily stripped of any real value when Sen. Ted Kennedy passed away from brain cancer 11 days later on August 25. The loss of Sen. Kennedy leaves the Democrats with 59 votes in the Senate, one short of a filibuster-proof majority, until a special election is held on January 19, 2010. Massachusetts Gov. Deval Patrick stated that he is pushing for the State Legislature to pass a bill allowing him to appoint an interim successor before the special election is held. The Legislature is meeting in mid September to begin discussing the possibility of changing state law, which currently does not allow the Governor to appoint a temporary replacement. The current version may not last long, if history is any guide. The state changed its succession law in 2004 to require a special election within five months to fill any vacancy. At the time, state legislative Democrats -- with a wide majority in both chambers -- were concerned because then-Governor Romney, a Republican, had the power to directly fill a vacancy that may have been created by the departure of Democratic Sen. John Kerry, who was running for President. With a Democrat Governor in place, Massachusetts legislators readily admit that any such change is entirely the result of the current political climate in Washington, where the Senate and House healthcare and EFCA bills are being prepped for floor votes. If the aforementioned legislation is passed with the help of a temporary replacement, at least employers can take solace in the fact that passage of these anti-business pieces of legislation will have been made possible only though the exercise of breathtaking hypocrisy. An added bonus? It makes a complete mockery of the rule of law, which is probably not the best way to restore the quickly eroding public trust in politicians.
Pick Your Plaintiff Wisely, September 4, 2009
In Monroe v. The City of Charlottesville, et al. (4th Cir., August 31, 2009), the Fourth Circuit reminded litigants and counsel that if a party seeks class certification, the proposed class representative better be aware of the facts giving rise to the litigation and “be of a character to vigorously pursue the case.”
Mr. Monroe brought various § 1983 claims against several Defendants arising out of a purported unreasonable seizure and what he characterized as a police dragnet. Mr. Monroe sought class certification for his equal protection claim, which the District Court denied.
The Fourth Circuit restated the criteria used to determine class certification: (a) a class so numerous that joinder is impractical; (b) common questions of law or fact; (c) a representative whose claims are typical of those of the class; and (d) a representative who will fairly and adequately represent the class’s interests. Concentrating on the fourth factor, the Court relied on evidence offered by Defendants showing that Mr. Monroe was unaware of the suit and only learned of it after reading about it in the newspaper. Defendants also offered evidence that Mr. Monroe said that the class attorneys would not return his calls and that he believed the litigation made him look bad. Mr. Monroe, who has the burden of proving the requirements for class certification, offered scant evidence in rebuttal. Noting the District Court’s deference in deciding class certification, the Fourth Circuit upheld the denial of the class.
While it may seem a basic premise, one must ensure that proposed class representatives are fully aware of the facts of the case and, as the Fourth Circuit cited, not “simply lending their names to a suit controlled entirely by the class attorney.”
Arbitration – Not So Fast, September 3, 2009
The Court of Appeals for the Second Circuit recently weighed the right of an employer to compel arbitration against the role of the employee’s union as the exclusive bargaining agent for the employee. While unpublished opinions concerning the right to arbitrate are fairly common, this decision warrants mentioning for two reasons. First, the Court did not compel arbitration. Second, the employer attempted to utilize a side agreement with the employee and bypass the employee’s union as the sole bargaining representative.
In Mendez v. Starwood Hotels & Resorts Worldwide, Inc., (2nd Cir., August 3, 2009), Starwood Hotels appealed an order denying its motion to arbitrate discrimination claims brought by Moises Mendez. Mr. Mendez is a member of New York Hotel & Motel Trades Council, AFL-CIO, which also is the designated collective bargaining representative with exclusive authority to negotiate arbitration agreements. Starwood argued that Mr. Mendez should be compelled to arbitrate his claim because he signed a one page letter-agreement requiring arbitration for any dispute relating to his employment.
The District Court and Second Circuit relied on section 159 of the National Labor Relations Act, which states that a designated bargaining representative has exclusive authority to bargain over conditions of employment. The letter-agreement Mr. Mendez signed extended to such conditions of employment and, as such, should have been negotiated by the union. The Court ruled that the letter agreement was unenforceable.
In Mendez, the Second Circuit examined two competing interests: (a) the right to compel arbitration and (b) the right of a union to act as the exclusive negotiating agent for the employee. Although courts typically favor arbitration agreements, they will not be enforced against union members unless they were entered into by the designated collective bargaining representative.
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2010 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.tm
