Certain Drivers Will Soon Lose Freedom To Text and Drive, September 28, 2010
Following the lead of many states enacting laws that ban texting while driving, the Department of Transportation, through the Federal Motor Carrier Safety Administration (FMCSA), published yesterday its new proposed Rule that would ban texting by drivers who transport hazardous material, while driving commercial buses or trucks, or while operating a train. The FMCSA final rule comes after a study that found text messaging by commercial vehicle drivers to be the most risky behavior among the list of high-risk tasks that drivers engage in behind the wheel. The study group focused on 200 truck drivers over 3 million miles of driving and determined that the odds of a “safety-critical event” (crash, near crash or veering out of a lane) were nearly 24 percent more likely to occur for drivers who were texting than drivers who were not. The rule will be effective October 27, 2010 and codifies current federal enforcement practices. The penalty for conviction includes fines ($2,750 for the driver and $11,000 for the carrier). The driver also can be disqualified.
Isn’t That Ironic? September 27, 2010
Last week, a federal district court in Michigan dismissed the sex discrimination claims of thirteen female applicants who were denied employment with Cintas Corporation. The reason? The Equal Employment Opportunity Commission (EEOC), the federal agency charged with receiving and investigating complaints of workplace discrimination, had failed to investigate their claims nor had it attempted to conciliate any of their claims. The court, therefore, dismissed the lawsuit for “failure to exhaust administrative remedies” which is the legal requirement that all persons suing for workplace discrimination must first have their complaints processed through a government agency (like the EEOC) charged with investigating such complaints. The irony here -- the EEOC was the plaintiff in this case. The EEOC felt so strongly about this case that it opted to sue on behalf of the group of women denied employment, yet, failed to comply with its own regulations. As a result, the claims of these thirteen women were dismissed. Classic. EEOC v. Cintas Corp., No. 04-40132 (E.D. Mich. Sept. 20, 2010).
New NLRB Holds That “Bannering” is Speech and Thus Protected Activity Under The Act, September 24, 2010
by John S. Bolesta
Quick quiz: Is there a constitutional distinction to be made between traditional picketing (which is defined as the act of walking or standing in front of a place of employment as a picket or is a person posted by a labor organization at an approach to the place of work) and stationary bannering (which involves far larger signs that are held by union agents and/or affixed between two poles) at a neutral employer’s premises in support of a secondary boycott? According to a majority of the newly minted National Labor Relations Board, the answer is yes. On September 2, 2010, Board Chair Wilma Liebman joined new Board members Craig Becker and Mark Pierce to finally issue a controversial 3-2 decision that banners are not inherently coercive and are therefore not subject to the secondary boycott provisions of federal labor law. In the consolidated cases known as United Brotherhood of Carpenters Local No. 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), the Board majority determined that neither the language of the National Labor Relations Act nor its legislative history suggested Congress intended to apply secondary boycott provisions to the "peaceful stationary display of a banner."
The majority argued that “[w]hile picketing is a mode of communication it is inseparably something more and different. Industrial picketing ‘is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.’” The majority was not at all concerned with the “nature of the ideas being disseminated.” Indeed, the majority failed to even address the "labor dispute" language of the banners which wrongfully suggested that the neutral building owners are the source of the labor dispute. The banners all proclaimed the existence of a “LABOR DISPUTE” and identified the neutral employers as the disputant in the following terms: “SHAME ON BANNER THUNDERBIRD MEDICAL CENTER,”“SHAME ON NORTHWEST MEDICAL CENTER,” and “DON’T EAT RA SUSHI.” Board member Schaumberg, who is soon to leave the Board, filed a thoughtful dissent and pointed out that (1) the distinction between traditional picketing and bannering is specious for a variety of legal and practical reasons and, perhaps more importantly, (2) the new standard announced by the Board “will assuredly foster precisely the evil of secondary boycott activity and expanded industrial conflict that Congress intended to restrict by enacting 8(b)(4)(ii)(B).”
Who knew that attaching a wooden stick to a sign and carrying that sign about could be deemed constitutionally significant?
Free Speech Sometimes Has Its Limits In The Employment Context, September 24, 2010
by John S. Bolesta
Growing up, most Americans are taught that the single most important right granted by our Constitution is the right to freedom of speech. Even as working adults, many Americans cling to the belief that they have an unfettered right to “free speech” even in cases where their employer instructs them to not do or say something. The reality is sometimes quite different, as many employers condition employment upon a voluntary abrogation of free speech rights, meaning they can interfere with (fire) an employee for exercising their otherwise protected right of free speech. Barry Nolan, a former local Comcast TV personality in Massachusetts, learned this lesson the hard way. Nolan, host of “Backstage with Barry Nolan,” obviously felt that Fox News Channel commentator Bill O’Reilly was less than deserving of an honorary award that the National Academy of Television Arts & Sciences (NATAS) planned to bestow upon O’Reilly. In protest of the planned award, Nolan began using his Comcast office email account to urge members of NATAS to not give the award to O’Reilly. After being cautioned by Comcast about improper use of company email, Nolan continued his campaign by using his own personal email account, posting his position on various blogs, and by contacting local media outlets regarding his outrage. At the actual awards ceremony, Nolan expressed his discontent by leaving the Comcast table and walking out of the event at the very moment O’Reilly was presented with the award. In response, Comcast suspended Nolan and eventually terminated his employment.
Nolan was now further incensed, and filed suit against his former employer for, what he said, was their decision to fire him for “refusing to stay mute on an issue of public interest.” Although Nolan claimed relief under Massachusetts’s far reaching Civil Rights Act, Judge Rya W. Zobel of the U.S. District Court for the District of Massachusetts granted summary judgment to Comcast, citing Nolan’s employment contract with Comcast that specifically allowed termination for “anything which, in the Company's sole and absolute judgment, brings Employee or the Company into public disrepute, contempt, ridicule or scandal, or which, in the Company's sole and absolute judgment is offensive to a substantial segment of the viewing public or would reflect unfavorably on the Company's interests or reputation.” Judge Zobel further noted that Comcast was “the sole arbiter of whether [Nolan] violated the contract” and since Comcast could terminate Nolan for any reason (or no reason at all), Nolan failed to prove that Comcast interfered with Nolan’s exercise of a protected right of free speech.
Senate Rejects Joint Resolution To Revoke NMB Rule on Union Elections, September 24, 2010
by John S. Bolesta
Further illustrating the polarizing nature of union representation issues among members of Congress, the Senate voted 56-43 September 23rd to reject a joint resolution seeking to revoke a National Mediation Board rule dealing with the board's representation election procedures for airline and railroad workers. The resolution of disapproval received overwhelming support from Republican senators, but unsurprisingly mustered a mere three votes from Democratic senators. As you may recall, the NMB’s rule, which became effective in July, requires that the outcome of an election held under the Railway Labor Act will be determined by a majority of the workers in a craft or class who cast ballots rather than a majority of the total workers eligible to vote for representation before a union would be certified as the representative, which had been the practice for 75 years. Despite the rhetoric on both sides, the resolution was likely doomed from the start, as President Obama vowed to veto the resolution if it managed to clear the Senate.
Elizabeth Warren Expected To Be Appointed Head Of The Consumer Financial Protection Bureau, September 17, 2010
In a widely expected move, President Obama is expected to announce today that he is appointing Elizabeth Warren, a Harvard professor, as the de facto head of the newly created Consumer Financial Protection Bureau. Ms. Warren is not expected to be named the director of the CFPB, which would require Senate confirmation, but rather a special assistant to the President. She would report to President Obama and Timothy Geithner.
Progressive activists and labor unions have pressed for Ms. Warren’s appointment, so it is no surprise that the President is expected to name her as the government’s newest “czar.” The Bureau will have the authority to write new regulations and standards for a variety of financial products, including home mortgages and credit cards.
Small Business Package Passes Senate, September 17, 2010
On Thursday, the Senate passed legislation designed to provide small businesses increased borrowing opportunities and other incentives to expand and hire new workers. Democrats, along with two Republicans, passed the measure, which would establish a $30 billion government fund that would be available to community banks for small business lending. The bill also provides tax cuts for both large and small businesses, as well as lower Small Business Administration loan program fees and increased guarantee and lending limits. Republicans argue that the measure will encourage risky loans.
The bill now goes to the House and, upon passage, to President Obama. It is unlikely that the bill will have any effect on the unemployment rate prior to November’s midterm elections.
NFL Players Association May Seek Decertification, September 17, 2010
The SportsBusiness Journal reported earlier this week that the NFL Players Association has begun the process of decertification in advance of a possible lockout by team owners at the end of the current collective bargaining agreement in March 2011. Players from the New Orleans Saints have already voted to decertify.
If the union decertifies, antitrust laws would prohibit the NFL from conducting a group boycott and the players could individually sue the NFL if it locks them out. As long as the union remains certified, the NFL falls under the labor exemption to antitrust laws. Decertification would also mean that the association would operate as a trade organization and lose the right to collectively bargain on behalf of its members. It would also lose control of players’ licensing and marketing rights.
The Players Association last voted to decertify in 1989, only to be recertified in 1993.
Unions May Get Card Check Through The Back Door, September 16, 2010
by Eric Paltell
Members of the business community may have been heartened by a September 13, 2010 speech from President Obama where he told his audience that he did not believe there were sufficient votes in Congress to pass the Employee Free Choice Act (“EFCA”). Unfortunately, it does not appear that the lack of support for EFCA will put the card check issue behind us.
On August 27, 2010, the NLRB announced that it was reconsidering its 2007 decision in Dana Corp. , 351 NLRB 437 (2007). In that case, the Board placed limits on the card check process by giving employees the right to request a secret ballot election if the employer recognized the union without an election. Prior to its decision in Dana Corp. , an employer’s voluntary recognition of a union based upon signed authorization cards barred an election for a “reasonable period of time,” which was usually at least one year.
However, the newly-constituted Obama Board ha decided to revisit the Dana Corp. ruling. In the consolidated cases of Rite Aid Store No. 6473 and Lamons Gasket Company, 355 NLRB 157 (2010), the Board stated that it had found “substantial issues concerning voluntary recognition arising under the Board’s decision in Dana.” The Board invited the parties, as well as other interested parties, to file briefs by November 1, 2010 to address the issue of whether it should “modify or overrule Dana.”
The Board’s decision was met with a vigorous dissent from two of its five members. The dissent noted that since the issuance of the Board’s decision in Dana three years ago, there have been 1,111 requests for voluntary recognition via card check, but only 54 secret ballot elections following those requests. In only 15 of the 54 elections did the employees vote to reject the union. Simply put, the Board’s decision in Dana does not seem to have had any kind of negative impact on the voluntary recognition process.
Those of us in the management and labor community are concerned that the Board’s actions signal an attempt to expand the use of card checks, notwithstanding the lack of legislative support for EFCA. It seems almost a foregone conclusion that the Board will overrule Dana Corp. , especially since one of its new members, Craig Becker, argued against the ruling when he was General Counsel to the Service Employees International Union (“SEIU”). Almost two years into the Obama administration, it looks like we are now starting to see the activist, pro-labor NLRB that was predicted when the President took office in January 2009.
Reality v. Imagination - how can you tell? September 10, 2010
For those of you who are Carl Hiaasen fans, you may already have read his newest novel “Star Island” about the female rock star who cannot be and will not be controlled. It’s well worth the read. But if you prefer non-fiction of the same genre, look no farther than the lawsuit filed against Britney Spears by her former bodyguard, who (among other wild and crazy things) alleges that she sexually harassed him, had sex in front of him, and invited her into her bedroom while she was naked. Even seeing the job description, one would hope these were not “other duties as assigned.” TMZ and EOnline have posted the lawsuit online. See, e.g., http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/0909_spears.pdf
NLRB Continues to Favor Salts Over Legitimate Applicants, September 9, 2010
One of the most embarrassing aspects of federal labor law is that unions can send members, commonly called “salts,” to apply for jobs at non-union companies specifically to generate unfair labor practices and litigation. These “salts” are told to do one of two things: (1) fail to get hired after making a big deal about their union affiliation and desire to unionize the company or (2) get hired, work to unionize the company, then leave. Sometimes, these “salts” are out of shape union business agents with nothing better to do than cause trouble.
The NLRB, in a two-to-one decision, has held that a referral system used by an association of non-union contractors was illegal because it had the effect of fewer salts being hired. KenMor Elec. Co., 355 N.L.R.B. No. 173 (2010). Again, the NLRB demonstrates that its newer, Obama administration appointees, wish to punish non-union employers.
Cancer in Remission is a Disability under the ADA, September 8, 2010
Amendments to the Americans With Disabilities Act took effect in 2009 that expanded the definition of disability. Courts are starting to apply those amendments, with bad results for employers.
A federal district court has ruled that cancer in remission is a disability, even if the employee at the time of the adverse employment action has no limitations on major life activities. If the cancer, when active, would limit those activities, the employee has demonstrated that he has a disability that must be accommodated. Hoffman v. Carefirst of Fort Wayne Inc. d/b/a Advanced Healthcare, No. 1:09-cv-00251 (N.D. Ind., August 31, 2010).
Unions try to organize carwashes, September 7, 2010
Yesterday's New York Times is reporting that organized labor is trying to unionize carwashes in California. As union membership dwindles, except among government employees, unions appear to be looking to the most disgruntled employees in the nation. I'm reminded of Jim Croce's hit song, “Working at the Carwash Blues.” As he said: “Don't expect to see me with no double martini or in the highbrow society news, cause I've got this totally depressing lowdown mind messing working at the carwash blues.” Perhaps Jim needed a union.
Social Networking Site Information Relevant to Claims of Emotional Distress, September 2, 2010
Parties to a lawsuit must exchange information during the discovery phase of litigation. Earlier this year a federal court in Indiana addressed whether plaintiffs in a sexual harassment case had to produce their “complete profile on Facebook and MySpace (including all updates, changes, or modifications to [ ]profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications.” The EEOC, on behalf of the plaintiffs, refused to produce the information, claiming the request for such information violated the plaintiffs’ expectation of privacy, and would harass and embarrass them. The court ruled that someone’s “expectation or intent that communications will remain private is not a legitimate basis for withholding the information from discovery during litigation,” and locking a profile from public access does not shield it from discovery either. Because the plaintiffs had placed their emotional and mental health significantly at issue, they were required to produce “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications … that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.”
EEOC v. Simply Storage Mgmt., 2010 U.S. Dist. LEXIS 52766 (S.D. Ind. May 11, 2010)
Kollman & Saucier, P.A., The Business Law Building, 1823 York Road, Timonium, MD 21093 Phone: 410-727-4300
Fax: 410-727-4391 © 1999 - 2012 Kollman & Saucier, P.A. All rights reserved.
Website maintained by Armistead Technologies, Llc.
Home |
About Us |
Services |
Frank L. Kollman |
Peter S. Saucier |
Darrell R. VanDeusen |
Clifford B. Geiger |
Anthony P. Palaigos |
Eric Paltell
Sarah E. Longson |
Randi Klein Hyatt |
Kelly C. Hoelzer |
Michael R. Severino |
Adam T. Simons |
Bernadette M. Hunton |
News
The Employment Brief Newsletter |
Frank Kollman's Blog |
Article Synopses |
Glossary |
Handbook |
Quick Clip Archive
HR Forms & Policies |
Newsletter Mailing list |
Contact Us
