December 9, 2011
By Brendan Fitzgerald and Miriam Rosen
The National Labor Relations Board made its commitment to “streamlining” the union representation election process clear in June 2011 with its controversial, pro-labor Proposed Rule for overhauling the union election system. So, it wasn’t too surprising when the Board recently voted for a resolution streamlining parts of the union election process. What was less expected, however, was that the Board took a piecemeal approach to the overhaul process by adopting a resolution focused only on limiting the litigation that frequently surrounds—and often delays–union elections.
Union elections frequently involve litigation over various aspects of the process, including whether to have an election, the appropriate bargaining unit, campaign behavior, election procedures and election results. Unions have long claimed that such litigation is used by employers as a tactic to delay elections and possible bargaining obligations.
December 5, 2011
Continuing its recent trend of limiting – rather than expanding – the availability of public policy wrongful discharge claims, the Ohio Supreme Court earlier this year clarified what the phrase “clear public policy” means. Although the Court’s latest pronouncement on this topic may not stem the tide of public policy claims employers face, it nonetheless provides another means of defense against them.
In Dohme v. Eurand Am., Inc., the company’s facilities administrator sued the company claiming that the termination of his employment violated public policy. The company, on the other hand, claimed that it terminated the facilities administrator’s employment due to his insubordination. In particular, the company sent an e-mail to all employees in advance of an insurance adjuster’s inspection that alerted employees that the facility would be inspected and that only certain employees of the company were to have contact with the adjuster. The facilities administrator was not one of the designated employees. Nonetheless, the facilities administrator told the adjuster that “he might want to find out what happened with” a fire inspection report allegedly removed from the company’s computer system. After learning of the facilities administrator’s communication with the adjuster, the company terminated the facility administrator’s employment.
November 29, 2011
When we talk with employers, we tell them again and again that one of the best defenses to discrimination claims is to treat similarly situated employees the same. But what does that mean? When are employees similarly situated? A recent discrimination case provides a good illustration of the concept.
In Hodczak v. Latrobe Specialty Steel Co., four employees in their late 50s and early 60s sued their employer for age discrimination after their employment was terminated. According to the employer, it terminated the employees’ employment because they regularly exchanged emails containing sexually explicit photographs – i.e., porn – in violation of the company’s Electronic Communications Policy. The employer discovered the porn exchange while it was investigating a sexual harassment complaint against one of the terminated employees.
November 8, 2011
As we reported earlier, employers are challenging – and courts are taking steps to reign in — EEOC subpoena power. In a recent decision issued by a federal court in Illinois, the employer successfully challenged an EEOC subpoena that sought confidential health information that was irrelevant to the charge before it.
In EEOC v. Loyola University Medical Center.PDF, the EEOC was charged with investigating the allegations of one employee who claimed that she had been discriminated against on the basis of a disability because she was required to undergo a fitness-for-duty examination. In the course of its investigation, the EEOC subpoenaed records for all employees who had been required to undergo a fitness-for-duty examination regardless of whether the employee held a position similar to the charging party, worked for the same supervisor, or had anything else in common with the charging party that might shed light on the validity of her allegations. The employer refused to provide the records, citing their irrelevance to the charge and their confidentiality. In response, the EEOC sought court enforcement of the subpoena.
November 7, 2011
As a federal court in Ohio recently confirmed, companies that are obligated to make benefit contributions pursuant to union collective bargaining agreements may find themselves liable for twice what they bargained for under some circumstances.
In Trustees of the Northwestern Ohio Plumbers and Pipefitters Pension Plan v. Helm & Associates.pdf, the court held that it would take a full-blown trial to decide whether the company had unwittingly obligated itself to pay benefit fund contributions not only for the workers who actually performed its work but also for the workers who claim that the work should have been assigned to them. In particular, the company assigned certain work to members of a local Laborers’ union and made contributions to the benefit plans maintained by the Laborers. Later, when the Plumbers and Pipefitters’ benefit plans audited the company, they claimed that some of the work assigned to the Laborers members should have been assigned to members of the Plumbers and Pipefitters. The benefit funds further claimed that, because the work was incorrectly assigned, the company was obligated to make contributions to the Plumbers and Pipefitters funds notwithstanding the fact that the company had already made contributions on behalf of the Laborers members who actually performed the work.
November 1, 2011
Agreements requiring employees to arbitrate any claims they may have against their employers arising from their employment can save both time and money. Courts, however, will review such agreements very carefully to ensure that they do not unfairly disadvantage employees by, among other things, denying them remedies or procedural tools that would be available to them in traditional litigation before a court. As a recent case demonstrates, courts will also review arbitration agreements to be sure they satisfy basic principles of contract law.
In Domin v. River Oaks, Inc.pdf, the employee signed an arbitration agreement that stated, in part:
October 31, 2011
As a follow-up to our earlier post regarding FMLA abuse, I wanted to provide a quick reminder regarding workers’ compensation leave. If an employee’s workplace injury or illness also qualifies as a serious health condition under the FMLA (and it usually will), consider counting any time away from work as a result of that condition as FMLA leave. Doing this will help to avoid situations where an employee is off work for a workers’ comp issue only to return to work with the full 12 weeks of leave available under the FMLA that can be used for non-workers’ comp conditions.
September 14, 2011
In our January 10, 2011 Alert, Inch by Inch, Row by Row–NLRB Looks to Facilitate Organizing in Non-Acute Health Care Facilities, we advised you that the National Labor Relations Board was re-evaluating how it determines an appropriate bargaining unit in non-acute health care facilities. In Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (Member Hayes dissenting…again), the Board found that Certified Nursing Assistants (CNAs) may comprise an appropriate bargaining unit without including other nonprofessional employees. In doing so, the Board overruled Park Manor Care Center, Inc., 305 NLRB 872, 875 (1991) as “obsolete.”
September 7, 2011
On August 27, 2011, the third term of former NLRB Chair Wilma Liebman ended. The expiration of Liebman’s term leaves the Board with only three Members: Mark Gaston Pearce (D), Craig Becker (D), and Brian Hayes (R).
The White House selected Mark Gaston Pearce to replace Liebman as Chair. Given that the Board’s Chair historically has the same political affiliation as the White House, Pearce was the only logical choice because he is the only fully confirmed Democrat still on the Board. Becker, the other Democratic appointee, is a recess appointment and his term will expire in December.
August 31, 2011
As if there weren’t already enough postings required for workplaces, the NLRB has now joined the party. On August 25, 2011, the NLRB issued a final rule that requires employers to inform employees of their rights under the National Labor Relations Act. Employers have until November 14, 2011 to post the required notice.
Who Must Post What?
The rule applies to the majority of employers covered by the Act, regardless of whether the employer has any union employees. As the NLRB noted previously, the rule is designed to capture the “great majority” of small businesses in the United States.