June 27, 2011
For well over 40 years, the rule for labor consultants and management attorneys has been that if those individuals deal directly (i.e., face-to-face) with an employer’s employees in connection with labor relations matters, then the employer must fill out and file with the United States Department of Labor (DOL) an LM-10, and the attorney or consultant must fill out and file an LM-20. In contrast, consultation with the employers and their managers about the best way to communicate with rank-and-file employees was deemed “advice” and not subject to disclosure on the LM-10 and LM-20 forms.
In its June 21, 2011 proposed rule modifications, the DOL’s Office of Labor-Management Standards embarked on a mission to require employers and their advisors to disclose to the public the details of their consultations relating to labor relations, including those consultations with employers and their managers, as well as direct dealings with rank-and-file employees. In doing so, the DOL concluded that the regulation has not been properly applied. The DOL states that it does not intend to infringe upon the attorney-client privilege, and parties would be able to limit their descriptions to preserve the privilege.
June 21, 2011
The United States Equal Employment Opportunity Commission (EEOC) held an open meeting on June 8, 2011 on the appropriate use of disability leave as a reasonable accommodation at its headquarters in Washington, D.C. The open meeting is just the latest step in the EEOC’s on-going effort to move the marketplace towards its enforcement position that employers may not implement one-size-fits-all leave periods for disabled employees (i.e., disabled employees have x number of days to return to work or face termination) – a lesson that Sears Roebuck learned in 2009 at the decidedly burdensome price of $6.2 Million.
June 20, 2011
In an eagerly anticipated opinion, the U.S. Supreme Court issued its decision in Wal-Mart v. Dukes today. The Court held that insufficient proof existed to allow certification of a class of more than one million women in a sex discrimination suit against Wal-Mart. The Court ruled only on the procedural issue of whether a class should be certified and not on the merits of the plaintiffs’ discrimination claims.
In Wal-Mart, the plaintiffs sought certification of a class of over one million women claiming that Wal-Mart had a companywide policy of discriminating against women in pay and promotion. The plaintiffs initially sought to include women who were not even employed by Wal-Mart when the lawsuit was filed in 2001. The Court of Appeals for the Ninth Circuit allowed certification of a narrowed class of women who worked at the company at the time of the 2001 suit. Wal-Mart appealed that decision arguing that the plaintiffs could not show that the claims of the over one million women were sufficiently similar to support certification as a class.
June 17, 2011
On Wednesday, June 15, 2011, the Department of Homeland Security launched a wide-scale audit of employers’ hiring records to assess compliance with employment eligibility verification laws. For the second time this year, Homeland Security’s Immigration and Customs Enforcement (“ICE”) Office delivered Notices of Inspection to 1,000 employers advising that ICE will audit those employers’ I-9 Forms. In addition, as part of the audits, ICE will also review employers’ payroll records, lists of employees and former employees, articles of incorporation, and other employment-related documents.
In announcing this latest round of audits, ICE indicated that it is “targeting” certain industries that have a role in the nation’s “critical infrastructure and key resources.” These industries include food production, information technology, health care, transportation, financial services and construction. The inspections are not limited to large employer, but according to ICE will target “employers of all sizes and in every state in the nation.”
June 16, 2011
Administrative agencies, the EEOC and NLRB included, often view their subpoena powers broadly – sometimes in the estimation of employers and their counsel, too broadly. A recent Pennsylvania federal court case took a narrower view.
In EEOC v University of Pittsburgh Medical Center (UPMC).pdf, the district court for the Western District of Pennsylvania ruled that an administrative subpoena the EEOC issued the University of Pittsburgh Medical Center was a “fishing expedition” and denied the application for enforcement of the subpoena.
June 15, 2011
The Ohio Court of Appeals for the Eighth District (Cuyahoga County) dramatically reduced a $43.1 million punitive damages award to $7 million in the case of Luri v. Republic Services, Inc., Case No. 94908, 2011-Ohio-2389 (May 19, 2011) . At trial, the Luri jury imposed a $46.6 million verdict, including $43.1 million in punitive damages for Luri’s claim of retaliation pursuant to Ohio’s civil rights statute, R.C. Chapter 4112. The appellate court held, however, that a statutory limit on punitive damages applied to Luri’s employment claim. The limitation on punitive damages, a provision of R.C. §2315.21, was enacted in 2005 as part of a comprehensive tort reform bill. There has been much speculation as to whether and to what extent various tort reform provisions will apply in employment cases. While the Ohio Supreme Court has yet to weigh in and many questions remain unanswered, the Luri decision is a welcome victory for Ohio employers. For a more detailed discussion of Luri and what it means, please read our Alert, The sky may not be the limit for an employee-plaintiff.
June 13, 2011
On Thursday, June 9th, Ohio’s Supreme Court held that an employee, who is terminated after sustaining a work-related injury, though prior to filing a workers’ compensation claim, may still pursue a workers’ compensation retaliation claim against his former employer. This case arose as Ohio’s Workers’ Compensation Retaliation Statute, when read in conjunction with Ohio’s applicable case law, left a gap in coverage for employees who sustained an industrial injury, but were terminated prior to filing a workers’ compensation claim. The Court filled this gap with what it called “a common-law tort claim for wrongful discharge in violation of public policy”. Thus, the Court attached the right to pursue a workers’ compensation retaliation claim to the work-related injury and not the filing of the workers’ compensation claim.
June 10, 2011
An Administrative Law Judge will convene a hearing on June 14, 2011 in the highly politicized labor dispute between the Boeing Company (Boeing) and the Association of Machinists and Aerospace Workers (Machinists). In April, the Acting General Counsel for the National Labor Relations Board filed a Complaint against Boeing, alleging that the plane maker’s decision to assemble its 787 Dreamliner aircraft at a new (non-union) facility in North Charleston, South Carolina rather than an existing (unionized) facility in Everett, Washington was in retaliation for a history of strikes by the Machinists at the Washington facility and therefore violative of the National Labor Relations Act. Boeing maintains that the decision to place a second assembly line in South Carolina was based upon the Company’s legitimate interest in seeking out a favorable business environment for new production.
May 17, 2011
In Jurys Boston Hotel-356 NLRB No. 114.pdf, the National Labor Relations Board (NLRB) recently decided that regardless of whether or not an employer enforces its handbook policies, the mere existence of a policy deemed unlawful by the NLRB may have a significant impact. Indeed, the NLRB served up a not so gentle reminder of the importance of regularly reviewing and updating your employment policies.
Pursuant to a neutrality agreement, the employer recognized the union, UNITE HERE, and signed onto a master contract in 2004. In 2006, following the expiration of the master contract, an employee filed a petition for a decertification election.