The Grueling Burden Of Paperwork, April 29, 2008
Fire Inspectors for New York City are required to carry the paperwork for the following day's inspections home with them, and to carry it to their first job each morning from home. That efficiency, according to several of them, made the "burden" of traveling to and from home work time. The dispute went to federal court where it recently was determined that the carrying of a briefcase full of paperwork did not turn travel to and from home into work time. The NYFD aura of 9/11 only carries over so far.
Super Sleuth School Principal May Be Liable For Videotaping Teachers In Locker Room, April 25, 2008
Here is a good example of why you should always talk to HR before conducting an investigation into possible employee misconduct.
Dearborn High School in Dearborn, Michigan, employs three male physical education teachers. These teachers share an office, which also serves as their locker room and changing area. The only way to access their locker room is through the boys' locker room.
School administrators suspected one of the physical education teachers of stealing from the student locker rooms. The principal and school police liaison agreed to install two hidden video cameras in the teachers' office/locker room, hoping to catch the alleged perpetrator in the act of putting stolen items into his desk. The images from the hidden cameras were not displayed live, but were recorded and stored for 30 days on the school's video security system.
After two of the teachers discovered the hidden cameras, they complained to the principal. After finally conferring with the school district's human resources director, the principal removed the cameras.
The teachers sued the school district and the principal in federal court alleging violations of their constitutional right to privacy guaranteed by the Fourth Amendment, as well as various state tort and statutory claims, including one for invasion of privacy. The court determined that as public employees, the teachers had a constitutional right to be free from unreasonable searches by their public employer. Given that their office also served as a locker room where they changed clothes, and was accessible only by going through the students' locker room, the court found that the teachers had a reasonable expectation of privacy in that area.
The court ruled, however, that the school district was not liable because it did not have a policy of installing video cameras in staff offices and because it was immune from liability under Michigan law. The school principal, on the other hand, was not entitled to summary judgment and could be held personally liable for her violation of the teachers' constitutional rights and for violations of Michigan tort law and a statute prohibiting video surveillance in private places. Perhaps the principal could have avoided her legal troubles if she had simply contacted the human resources director before investigating. See Helisek v. Dearborn Public Schools, No. 06- CV-12369-DT (E.D. Mich. Mar. 31, 2008).
Unions Still Don’t Get Along: TRO Issued Against SEIU, April 18, 2008
The heated battle between rival unions SEIU and the California Nurses Association/National Nurses Organizing Committee (CAN/NNOC) found its way to a California courtroom on Wednesday, April 16, where a judge issued a temporary restraining order against SEIU President Andrew Stern and all SEIU staff. CAN/NNOC v. Stern, No. RG08381780 (Cal. Super. Ct. April 16, 2008). The Court ordered SEIU and Stern to cease and desist from stalking and harassing officers, directors, and staff of the nurses' union. Stern was also ordered to instruct his employees not to attempt to enter any CNA/NNOC offices or private property of any CNA/NNOC officers, directors, or employees. A May 1 hearing has been scheduled on the CAN/NNOC’s request for a preliminary injunction. Despite recent events at a Michigan Conference, where a number of people were injured when SEIU members attempted to push and shove their way in to a banquet hall (See our April 15 Quick Clip), SEIU President Stern has stated that "under no circumstances have SEIU members or staff harassed CNA members or leadership."
New Fmla Poster On Military FMLA Issued By DOL, April 16, 2008
The Department of Labor (DOL) has issued a poster on Military FMLA. This is a mandatory posting for FMLA covered employers and should be placed next to the current FMLA poster advising employees of their FMLA rights. The poster provides general information on military FMLA, which was signed into law by the President in January. The DOL has not yet issued regulations on military FMLA, but employers are still required to follow the law, which provides for: (a) up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent, or next of kin of a servicemember who has suffered a serious illness or injury in military combat; and (b) up to 12 weeks of FMLA leave due to a "qualifying exigency" related to active military duty in support of a contingency operation. Get your copy of the new DOL poster at: http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf.
Aren’t Unions Supposed to Bring People Together? April 15, 2008
Do you think that unions only accuse employers of union busting and that all unions get along? Think again. A dispute between the SEIU and the California Nurses Association/National Nurses Organizing Committee (CAN/NNOC) has turned very, very ugly. The latest conflagration involves an SEIU demonstration on April 12 during a national labor conference in Michigan organized by a labor friendly non-profit that publishes Labor Notes. The theme of this year's conference: “Rebuilding Labor's Power." But a tussle between the two unions over the representation of nurses in Ohio and Nevada turned into an actual tussle, with the CNA/NNOC accusing the members of the SEIU of physically assaulting members of other unions attending the conference who stood in their path as they tried to enter a banquet hall.
The SEIU claimed that there was a “peaceful protest” at the conference to voice the SEIU’s disapproval of rival union CNA/NNOCs “anti-union campaign in Ohio.” This peaceful protest included pushing and shoving as SEIU members tried to get into the banquet and other conference attendees tried to keep them out. Several people got hurt and one person died from a heart attack. A statement issued by the SEIU’s Executive Vice President said that: "Open debate serves an important role as we work to strengthen our movement. The Labor Notes conference is the right time and place to discuss our differences." It sure is an interesting definition of discussion.
Transgendered Job Applicant Has Title VII Claim, April 14, 2008
The development of the law holding that Title VII protect transgendered individuals, not because they are transgendered, but because they are not meeting an employer’s gender stereotype continues. Recently, in Lopez v. River Oaks Imaging & Diagnostic Group Inc., No. 4:06-cv-03999 (S.D. Tex. April 3, 2008), the court denied a company’s motion for summary judgment where a biological male who presented himself publicly as a female, identified himself with both his male and female names, and listed personal references who knew of his transgendered status had a job offer withdrawn by a medical clinic that claimed he had “misrepresented his sex” during the application process. Adopting a view taken primarily by the Sixth Circuit, the court held that "Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer."
In an interesting twist, the court denied the motions for summary judgment filed by both parties, explaining that the clinic's withdrawal of the job offer could be interpreted either as evidence of "animus" against an individual who presents himself "in a manner inconsistent with hiring managers' preconceived notions of what a male should look and act like," or as evidence of its enforcement of its policy forbidding misrepresentation by job applicants.
Browies Laced With Pot Not Enough For Arbitrator, April 10, 2008
by Pat Stewart
Most labor arbitration awards are relatively fair, taking into account all of the evidence and balancing the equities of the parties’ positions. Recently, however, an arbitrator in Alabama may have crossed that threshold by ruling that a school bus driver who was fired for testing positive for marijuana should be reinstated with full back pay because the driver claimed she was at a party and unknowingly ate brownies laced with pot, despite her former relatives’ testimony that they had observed the grievant smoke marijuana on numerous occasions.
The case began when the bus driver was given a random drug test and tested positive for marijuana. When confronted with the test results, the driver offered no explanation except to state that she attended a party the previous day. She was also offered an opportunity to explain to the Board of Education why she tested positive and why she should not be terminated but failed to do so.
At the hearing before the arbitrator, the driver’s former sister-in-law and former mother-in-law both testified that they had personally observed the grievant smoke marijuana while employed as a bus driver and prior to her employment. The driver, however, claimed that she had never knowingly used pot in her life. She also claimed that she had been to a party the day before the test and had eaten some brownies served there. Her boyfriend, who claimed to have accompanied her to the party, testified that he heard someone at the party say that “somebody had put marijuana in some of the brownies.”
The arbitrator ruled that the termination was improper and upheld the grievance, under the following rationale:
- “No expert testimony was offered to show that the grievant would still be under the influence of marijuana ingested the previous day or that her driving skills would be impaired.”
- “The grievant's employment history and testimony established that she was a good bus driver, had never received a citation or been written up for failure to perform all functions expected of her as a bus driver.”
- “Testimony established grievant was well liked by coworkers and the parent's of her students.”
- “After a thorough review of all the evidence and much soul searching I find that I have a nagging doubt and I think a reasonable one, that the grievant knew the brownies contained marijuana prior to eating one. In this situation I could not in good conscience uphold the extreme penalty of termination. I therefore hold that the Washington County Board of Education has not established that the grievant knowingly ingested marijuana into her system.”
It seems that the arbitrator in this case went too far, especially considering that the driver was awarded full backpay. Nonetheless, it remains as an arbitration award on the books. Washington Board of Education, 124 LA (BNA) 1317 (J. Donovan, 2007).
FMLA Does Not Require Reasonable Accommodation, April 9, 2008
A federal appeals court in Philadelphia has stated that the Family and Medical Leave Act does not require an employer to accommodate a returning employee's inability to work full time. There was no dispute that the employee was unable to work full time, which was an essential function of the job. Baker v. Hunter Douglas, Inc., No 06-5149 (3rd Cir., March 19, 2008).
Teamsters Ratify Ups National Agreement, April 9, 2008
by Pat Stewart
The Teamsters Union announced yesterday that its membership ratified a 64-month national agreement with UPS Freight.
According to the union, the agreement provides for general wage increases for city drivers totaling about $4.35 per hour over the term of the agreement. City drivers previously earned about $21 per hour.
Similar wage increases will be provided to dockworkers employed on terminal sites and to long-haul freight drivers. For example, the wage rate of a full-time dockworker will increase by $3.78 per hour over the life of the contract, and long haul drivers will receive a mileage rate increase of 11 cents per mile, an amount intended to equate to the increase provided to city drivers.
The ratified agreement establishes a new self-insured health care plan which will have benefits similar to those provided under the previous health care plan, according to the union. The employees’ share of monthly benefits, which remain fixed during the term of the agreement, will be $50 for single coverage, $100 for couples coverage, and $150 for family coverage.
The new contract, which expires July 31, 2013, covers an estimated 9,900 drivers and dockworkers at 136 UPS Freight terminals nationwide.
UFCW Membership Ratifies Agreements With Grocers, April 9, 2008
by Pat Stewart
Four separate contracts were ratified last week by members of the United Food and Commercial Workers Union who work for Giant Food and Safeway in the Washington, D.C. and Baltimore areas. The agreements raise wage rates and maintain most benefits. However, they also impose a new requirement that new hires pay a portion of the companies’ health insurance premiums.
According to reports, most current full-time and part-time employees will receive general wage increases totaling $1.50 per hour over term of the agreements, all of which run for four years. Service clerks and courtesy clerks will receive wage increases of $ 1.00 and 70 cents per hour, respectively, over the duration of the agreements. In addition, the starting wage rates for food clerks, dairy/deli clerks, and some other positions will be increased by 16 percent (from $6.60 to $7.60 per hour).
Health care benefits under the new agreements are maintained with little change for current employees, who do not make contributions toward health care premiums. However, most new hires will pay between $5 and $15 per week depending on their selected coverage levels. In addition, the parties agreed to moderate pension contribution increases without improving pension benefits.
The agreements cover about 15,000 Giant and 8,000 Safeway employees.
Calling Your Prospective Employer a Bad Name Protected, April 8, 2008
A federal court has affirmed a decision of the National Labor Relations Board finding that a bus company's failure to hire 6 drivers was illegal. The six drivers, who had been employed by the prior bus company, opposed the award of the bus contract to the new company. When it came time to hire drivers, the new company remembered the uncomplimentary letters those drivers wrote to the school district opposing the award of the contract.
The NLRB and the court found that the letter writing campaign, suggested by the union the drivers were affiliated with, was protected concerted activity. The reasoning was that the drivers had an interest in retaining their wages and benefits if the new company got the contract. Five Star Transportation, Inc., No. 07-1316 (1st Cir., March 31, 2008).
This is another instance where the law distorts the employer-employee relationship. If a prospective employee says he does not want a new employer, the new employer ought to be able to say it does not want the prospective employee.
Lunch and On-Call Time Not Compensable, April 7, 2008
A federal appeals court in Chicago has ruled that employees are not entitled to be paid for lunch breaks, even though they were on call for emergencies and required to be within a two-hour drive of their normal duty station. The court found that the employees were not working during this time, even though there were minor restrictions on their activities, and they were required to wear beepers. Jonites v. Exelon Corp., No. 07-3053 (7th Cir., April 3, 2008).
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