HIGHLIGHTS
FOR THE MONTH OF JUNE 2007
By: Teresa
D. Teare
RECENT DEVELOPMENTS
Threats To Engage In A Secondary Boycott Of Department Store
And Mock Funerals At Health Care Facility Are Not Prohibited
By The National Labor Relations Act.
In Sheet
Metal Workers’ Intern. Ass’n, Local 15, AFL-CIO
v. N.L.R.B, the federal Court of Appeals for the District
of Columbia reversed the National Labor Relations Board’s
findings that a Union (1) engaged in unfair labor practices
by sending a threatening letter regarding its intentions
to picket; and (2) engaged in unlawful picketing when it
staged a mock funeral at a hospital.
Facts of the Case: Sheet Metal
Workers’ Local 15 was involved in a labor dispute
with an HVAC contractor. The Union notified a secondary
employer (a department store for which the HVAC contractor
was performing work) that the Union planned to publicize
its dispute at two of the department store’s construction
sites. The letter did not contain the assurance required
by the National Labor Relations Board that the Union’s
picketing would conform to the Board’s standards for
picketing a neutral employer. Based upon this letter alone,
an Administrative Law Judge (ALJ) concluded that the Union
had violated the National Labor Relations Act because the
Union did not state its picketing would be lawful.
Additionally, the Union staged a “mock funeral”
outside a hospital that was using non-union workers. The
funeral occurred approximately 100 feet from the hospital,
with the Union distributing leaflets stating that going
to the hospital “Should Not Be a Grave Decision.”
One person was dressed as the “Grim Reaper”
and four other people dressed in street clothes carried
a prop coffin. The ALJ concluded the Union had violated
the NLRA because the mock funeral constituted “picketing”
and people “were forced to view and cross a death
march in order to patronize the hospital.” The Board
agreed with the ALJ that both actions (the letter without
assurances and the mock funeral) were unlawful activity.
The Court’s Ruling: The Court of Appeals reversed the Board. The Court held
that although the written threat to picket did not state
that the Union would engage in “lawful picketing,”
an unfair labor practice does not arise out of the Union’s
failure to assure an employer that the Union will abide
by the law. Because the Union’s letter to the secondary
employer made no suggestion that it intended to do anything
that would violate the Act, the Court held the letter was
not an unfair labor practice.
As for the “mock funeral,” the Court looked
to abortion case law for guidance in determining whether
the Union’s activities were coercive, threatening,
restraining, or intimidating. Because the mock funeral occurred
about 100 feet from the hospital and the procession was
orderly and non-threatening, the Court found that the Union’s
protest was not coercive, and thus, protected by the First
Amendment. Accordingly, First Amendment analysis will be
used in analyzing how unions deliver their message and to
whom that message is directed, as courts attempt to balance
free speech concepts with the unlawful labor practices proscribed
by the NLRA.
Lessons Learned: Employers
that use non-union contractors or are subject to Union picketing
for other reasons should expect more aggressive theatrics
by picketers in light of this decision. Mock funerals, inflatable
rats, and other outrageous props likely will appear with
more frequency at picketed sites. Prompt consultation with
counsel is crucial to determine whether the activity runs
afoul of the law and can be enjoined.
House Of Representatives
Seeks To Overturn Ledbetter Decision.
On June 27, 2007, the House Education and Labor Committee
considered the proposed “Ledbetter Fair Pay Act,”
which would overturn the Supreme Court’s recent decision
in Ledbetter v. Goodyear Tire & Rubber Co., Inc., and
allow claims for wage discrimination based on decisions
outside the 180/300 day limitations period for filing timely
EEOC charges.
As we explained in more detail in our May
2007 E-Update, in Ledbetter v. Goodyear Tire & Rubber
Co., Inc., the U.S. Supreme Court held that individuals
must file claims for pay discrimination under Title VII
within 300 days of the allegedly discriminatory act that
caused the pay to be depressed. The Court rejected the plaintiff’s
argument that discriminatory pay claims under Title VII
should be governed by the “paycheck accrual”
rule followed under the Equal Pay Act where each paycheck
is treated as a new violation.
The “Ledbetter
Fair Pay Act,” would overturn the Supreme Court’s
decision by adopting the “paycheck accrual”
rule for claims of discriminatory compensation under Title
VII, the Age Discrimination in Employment Act, the Americans
with Disabilities Act, and the Rehabilitation Act. In addition,
the Bill would amend all four statutes to permit an individual
to recover damages when an individual is affected “by
application of a discriminatory compensation decision or
other practice, including each time wages, benefits or other
compensation is paid, resulting in whole or in part from
such a decision or other practice.” It appears that
any action relating to compensation that has any relation
to a discriminatory decision made in the past (no matter
how long ago) could potentially result in a new claim.
The fate of the Bill is uncertain at this point.
TAKE NOTE
“Employee
Free Choice Act” Defeated in Senate. On
June 26, 2007, Senate Republicans blocked passage of the
so-called “Employee Free Choice Act” which,
contrary to its name, would have deprived many employees
of secret ballot elections as the preferred means to choose
whether or not to unionize. (See our February
E-Update for a description of the provisions of the
Bill.) The House passed the Bill in March. Unions and their
supporters vow that they will continue to press for passage
of this law in the future.
ADA Reasonable Accommodations. In Huber
v. Wal-Mart Stores, Inc., the federal Court of Appeals
for the Eighth Circuit held that an employer that has an
established policy to fill vacant job positions with the
most qualified applicant does not have to reassign a less
qualified disabled employee to that position. The employer
was sued under the Americans with Disabilities Act (ADA)
after an employee had sustained a permanent injury to her
right arm and hand and sought, as a reasonable accommodation,
reassignment to a vacant and equivalent router position.
The employer, pursuant to its policy of hiring the most
qualified applicant for the position, required the employee
to apply and compete for the opening. Ultimately, the employer
filled the job with a non-disabled applicant who was deemed
most qualified. The Court, stating that the “ADA is
not an affirmative action statute,” held that the
ADA does not require an employer to reassign a qualified
disabled employee to a vacant position when such a reassignment
would violate a legitimate nondiscriminatory policy of the
employer to hire the most qualified candidate.
Antitrust Liability. In Reed v. Advocate Health Care, a federal district
court found that an employer is not immune from suit under
the antitrust laws merely because it is a party to a collective
bargaining agreement. Chicago area nurses brought suit for
violations of federal antitrust law, alleging that the University
of Chicago Hospitals conspired to depress their wages for
numerous years and further agreed to regularly exchange
detailed and non-public information about the nurses’
compensation. The nurses argued that the conspiracy had
the effect of depressing compensation for hospital RNs in
the Chicago area despite a national nursing shortage. In
response, the hospitals argued that because the wages they
pay are the result of collective bargaining, their communications
were subject to an antitrust exemption applicable to collective
bargaining. The court disagreed and ruled that because the
complaint alleged that the information exchanges went beyond
the collective bargaining process, the antitrust exemption
was inapplicable.
FLSA/EPA
Exemption. In Downes v. J.P. Morgan Chase & Co.,
a federal district court held that skilled computer workers
are excluded from the protections of the Equal Pay Act (“EPA”),
which is part of the Fair Labor Standards Act (“FLSA”).
A female technology manager brought suit under the EPA alleging
that she was paid disproportionately less than her male
counterparts. The EPA is enforced pursuant to the provisions
of the FLSA. The FLSA minimum wage section exempts certain
categories of employees, including “any employee”
whose primary duty is to perform certain computer-related
work for a certain level of pay. The employee argued that
Congress did not intend to permit gender pay disparity among
skilled computer workers. The court disagreed and found
that Congress deliberately passed the EPA knowing that large
categories of workers would be excluded. The clear language
of the FLSA excludes skilled computer workers from coverage
under the FLSA and, consequently, the EPA.
Sexual Harassment. Sexual harassment can be based on sexually charged e-mail
exchanges, even if they are not directed or intended to
be received by the victim. A female employee was subjected
to sexually harassing and derogatory remarks from managers,
co-workers and subordinates. Although she complained about
the comments, the company failed to take action. She then
accessed a co-worker’s e-mail account and found a
sexually vulgar e-mail about her anatomy and dress. Even
though the e-mail was not sent to her, the U.S. Court of
Appeals for the Tenth Circuit held that it could, with the
other evidence, be considered part of the hostile work environment.
The Court rejected the notion that the e-mail was irrelevant
simply because the plaintiff was not an intended recipient.
Therefore, the employer’s motion for summary judgment
was denied. EEOC v. PVNF LLC d/b/a Chuck Daggett Motors.
FMLA. An
employee who was terminated the day after she told her employer
that she would not be in because her son had been in an
accident did not have a claim under the Family and Medical
Leave Act. In Greenwell
v. State Farm Mutual Automobile Insurance Co., the employee
had received numerous prior warnings and reprimands for
poor attendance. She then called her supervisor to say she
would not be coming to work because her son had been in
an accident. She returned to work the next day and did not
complete a request for FMLA leave covering her absence because
she did not have a doctor’s note. Her employment was
terminated. The employee sued under the FMLA and argued
that she did not need to complete an FMLA leave application
to be protected by the FMLA. The Court disagreed, holding
that an employee merely alleging sickness as the reason
for absence does not automatically provide sufficient notice
to the employer that the reason for the leave is an FMLA-qualifying
event.
Caregiver
Discrimination. The EEOC recently issued an Enforcement
Guidance on the Unlawful Disparate Treatment of Workers
With Caregiving Responsibilities. The EEOC Guidelines
acknowledge that there is no legal protection for “caregivers”
as a class under federal anti-discrimination laws. The EEOC
nonetheless states that differential treatment of employees
with caregiver responsibilities may constitute discrimination.
For example, an employer that treats female employees with
children differently than males with children may be subject
to a claim of sex discrimination. Denying leave to males
for family responsibilities but granting it for the same
reasons to female employees is an example of such differential
treatment. Similarly, an employer that declines to hire
a female with young children but hires similarly situated
males is vulnerable to a claim. The EEOC notes that stereotypical
attitudes may be at work that reveal a gender bias. In addition,
the EEOC identifies potential discrimination under the Americans
With Disabilities Act, which prohibits discrimination against
individuals based on their association with a disabled person.
An employer that refused to hire someone because of concerns
about his/her responsibilities caring for a disabled family
member might be subject to an ADA claim. The Guidelines,
although not based on the express statutory language of
federal anti-discrimination laws, may give rise to new litigation.
Accordingly, employers should be aware of what the EEOC
deems disparate treatment of caregivers and ensure that
employees with such responsibilities are treated evenhandedly.
TOP TIP
Fair Credit
Reporting Act - Are you compliant? Asking about criminal
convictions on an employment application is legal, but undertaking
a background check triggers obligations under the Fair Credit
Reporting Act (FCRA). The FCRA is designed primarily to
protect the privacy of consumer information and to guarantee
that the information supplied by consumer reporting agencies
is as accurate as possible. However, a “consumer report”
also includes a background check undertaken by a third party
for an employer. As such, the FCRA contains requirements
that employers must meet whenever they use such consumer
reports. These requirements are:
• Authorization by Employee: Before
you can get a consumer report for employment purposes, you
must notify the individual in writing (in a separate document)
that a consumer report may be used for employment reasons.
You also must get the person’s written authorization
before you ask a Consumer Reporting Agency (CRA) for the
report. Importantly, the consent forms that background check
firms provide to companies to distribute to employees typically
do NOT meet the FCRA requirements.
• Adverse Action: If you rely in
whole or in part on information from a consumer report for
an “adverse action” (i.e., denying a job application,
reassigning or terminating an employee, or denying a promotion),
you must:
Before you take the adverse action, give the individual a pre-adverse action disclosure
that includes a copy of the individual’s consumer
report and a copy of “A
Summary of Your Rights Under the Fair Credit Reporting
Act” as well as wait a “reasonable period
of time” (undefined) before acting; and
After you have taken an adverse action, give the individual an adverse action notice in writing
identifying the action that has been taken. The notice
must include: The name, address, and phone number of
the CRA that supplied the report; a statement that the
CRA did not make the decision to take the adverse action
and cannot give specific reasons for it; and, a notice
of the individual’s right to dispute the accuracy
or completeness of any information the CRA supplied,
and his or her right to an additional free consumer
report from the agency upon request within 60 days.
There are legal consequences for employers that fail take
these steps. Indeed, the FCRA allows individuals to sue
employers for damages in federal court and recover, in addition,
court costs and reasonable legal fees. Punitive damages
are recoverable for deliberate violations.
For greater clarification of any of these issues, you may
contact any Shawe
Rosenthal attorney.
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