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Monthly Archives: December 2014

Santa Gives EEOC a Gift—For Now

By John Alan Doran We previously reported on a case where the EEOC was hit with a $4.7 million judgment in attorneys’ fees and costs for pursuing a frivolous class action. (See blog post EEOC Silent on Sanctions) This week the Eighth…
Read More

2014-12-24T11:59:22-07:00

Posted on December 24, 2014

By John Alan Doran

We previously reported on a case where the EEOC was hit with a $4.7 million judgment in attorneys’ fees and costs for pursuing a frivolous class action. (See blog post EEOC Silent on Sanctions) This week the Eighth Circuit Court of Appeals reversed that ruling, in part. EEOC v. CRST Van Expedited, Inc., No. 13-3159 (8th Cir. Dec. 22, 2014) 

The EEOC sued CRST claiming that it subjected roughly 270 female employees to sexual harassment.  The trial court ultimately dismissed almost all of the claims for a variety of reasons.  The EEOC ultimately settled the case for $50,000 on behalf of only one of the claimants.  The trial court then entered judgment on CRST’s behalf for $4.6 million in attorneys’ fees and costs.

In a highly technical ruling, the Appeals Court first found that CRST was not entitled to recover attorneys’ fees with respect to (1) 67 of the purported class members because their claims were dismissed on purely procedural grounds, and (2) the EEOC’s pattern and practice claim, which never appeared in the EEOC’s Complaint.  The Appeals Court sent the rest of the case back to the trial court for that court to specifically identify each and every individual frivolous claim (of the remaining 90 or so), and how much of CRST’s $4.6 million in fees and costs were incurred exclusively in defense of those claims.  This is no small feat for any trial court, and it promises to dramatically reduce CRST’s judgment.  It also unfortunately promises much mischief in the future by giving the EEOC a clever way to game the system and jettison multiple claims on procedural grounds to avoid judgments like this one.

Posted in EEOC | Tagged crst, Eighth Circuit

NLRB to Re-Hear Labor Arbs

By Bill Wright Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an unfair labor…
Read More

2014-12-18T07:49:39-07:00

Posted on December 18, 2014

By Bill Wright

Another NLRB bombshell. The NLRB used to “defer” statutory issues to arbitration. For example, if an employer and union arbitrated the issue of an employee’s discharge for good cause, the NLRB would not then prosecute an unfair labor practice (“ULP”) charge over whether the discharge was because of protected concerted activity, unless the loser at arbitration could show the arbitrator had ignored the possible ULP.

The NLRB was dissatisfied with this arrangement; it was just too hard to show that the arbitrator had ignored a possible ULP. Maybe the arbitrator considered it and just didn’t mention it in the award. Now, the NLRB will defer to the parties’ arbitration only if the party wanting deferral can show the parties explicitly authorized the arbitrator to consider ULPs, the arbitrator actually considered the ULP, and the arbitrator came reasonably close (according to the NLRB) to deciding the issue correctly. If you can’t show all this, the NLRB may explode your litigation costs by pursuing a ULP on the same issues (or related issues) already decided in your arbitration. Fair warning: make sure the arbitrator is explicitly authorized to consider ULPs and that the arbitrator addresses them, or be prepared to fight the issue again with the NLRB. Babcock & Wilcox Constr. Co., 361 NLRB No. 132 (Dec. 15, 2014).

Posted in Arbitration, NLRB | Tagged Arbitration Agreements, NLRB, statutory issues, ULP, union arbitration, Union Issues

Federal Contractors Beware – Part 7

By Lori Wright Keffer In response to President Obama’s July 2014 Executive Order discussed here, on December 3, 2014, the Department of Labor announced a new rule prohibiting discrimination by federal contractors on the basis of gender identity or sexual…
Read More

2014-12-15T16:43:03-07:00

Posted on December 15, 2014

By Lori Wright Keffer

In response to President Obama’s July 2014 Executive Order discussed here, on December 3, 2014, the Department of Labor announced a new rule prohibiting discrimination by federal contractors on the basis of gender identity or sexual orientation. The rule extends to both applicants and employees and will become effective on April 8, 2015. Once effective, it will apply to federal contractors who hold contracts entered into or modified on or after this date. For more information, click to read the
Department of Labor’s final rule http://www.ofr.gov/OFRUpload/OFRData/2014-28501_PI.pdf.

See our other previous posts warning Federal Contractors:

Federal Contractors Beware – Part 1
Federal Contractors Beware – Part 2
Federal Contractors Beware – Part 3
Federal Contractors Beware – Part 4
Federal Contractors Beware – Part 5
Federal Contractors Beware – Part 6

Posted in Discrimination | Tagged Discrimination, Executive Order, Gender Discrimination

NLRB “Modernizes” Procedures

By Patrick Scully and Beth Ann Lennon The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century….
Read More

2014-12-12T16:00:54-07:00

Posted on December 12, 2014

By Patrick Scully and Beth Ann Lennon

The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century. Unfortunately, a majority of the changes only speed up the election process itself. The adopted changes complicate election proceedings while reducing the time for compliance. As the dissenting Board Members thoroughly discussed, these changes disproportionately burden employers while simultaneously failing to provide sufficient time for employees to get information necessary to make an informed decision, the keystone of the Act. For example, pre-election hearings are not permitted in most cases—litigation at the pre-election hearing is limited to “those issues necessary to determine whether it is appropriate to conduct an election.” Even if a hearing is permitted, it must be held eight days after hearing notice is served. The employer must submit a Statement of Position within eight days (or the day before the hearing). This statement will bind the employer in all subsequent litigation. So, don’t forget anything! Employers must also provide a list of prospective voters to the Board agent and the Union at the same time it provides its Statement of Position, before the NLRB’s regional director directs an election or approves an election agreement. Once the NLRB’s regional director approves an election agreement or directs an election, the employer must provide an eligible voter list within two days and this list must now include personal email addresses and phone numbers of employees. In this rush to the election, the employees will likely hear only one voice—that of the union organizer.

Posted in NLRB, Union Issues | Tagged NLRA, Representation Election Rules

Employees May Use Email For Union Activity

By Patrick Scully and Beth Ann Lennon The NLRB says its 2007 decision in Register Guard was “clearly incorrect.”  Employers cannot prohibit employee use of employer email for union and other protected communications.  In other words, employer policies that prohibit…
Read More

2014-12-12T15:06:25-07:00

Posted on December 12, 2014

By Patrick Scully and Beth Ann Lennon

The NLRB says its 2007 decision in Register Guard was “clearly incorrect.”  Employers cannot prohibit employee use of employer email for union and other protected communications.  In other words, employer policies that prohibit non-business use of employer email systems are now invalid, absent a showing of “special circumstances”.  The Board majority stated “we will presume that employees who have rightful access to their employer’s email system…have the right to use the email system to engage in Section 7-protected communications on nonworking time.”  Needless to say, the Board rejected the argument that an employer has any valuable property interest in its email systems.  Rather, the Board defined emailing in the workplace as the modern equivalent of face to face employee communications.  While the Board indicated that an employer was free to restrict non-business emailing during “working time,” it failed to provide any safe harbor for employer monitoring of email.  Unless the employer can show it prohibits ALL NONWORK emails in working time, any attempt to restrict union/protected emails during working time will be met with a claim of discriminatory enforcement.

The NLRB has effectively handed over your email systems to the labor movement.  You should promptly revise policies that prohibit any nonbusiness use of email and you should strongly consider training your management team on the new state of the law.  Purple Communications, 361 NLRB No. 126 (December 11, 2014).

Posted in NLRB, Union Issues | Tagged email messages, Union Issues

Supremes OK Post-Shift Screening

By John Alan Doran The Supreme Court today shed further light on post-work, non-compensable time under the FLSA. Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (U.S. December 9, 2014). The plaintiff class were warehouse workers who retrieved and packaged…
Read More

2014-12-09T11:26:47-07:00

Posted on December 9, 2014

By John Alan Doran

The Supreme Court today shed further light on post-work, non-compensable time under the FLSA. Integrity Staffing Solutions, Inc. v. Busk, No. 13-433 (U.S. December 9, 2014). The plaintiff class were warehouse workers who retrieved and packaged goods to ship to Amazon customers. After each work shift, they were required to stand in line to be screened for possible theft. The plaintiffs claimed they spent 25 minutes a day waiting in the security screen line, and the employer did not compensate them for their waiting time. The trial court dismissed the case, finding that the time spent in a security check line was not integral and indispensable to the employees’ warehouse work. The Ninth Circuit Court of Appeals reversed that ruling, holding that because the employer required the employees to wait in line, and because the security screens solely benefitted the employer, the time was compensable.

The Supreme Court made short shrift of the Ninth Circuit’s analysis. The Supreme Court stated that the test for compensability is not simply a matter of whether the employer required the employee to engage in the post-work activity, or the Portal-to-Portal Act would be rendered completely meaningless. Instead, post-work activity is only compensable when the activity is principally the kind of work the employee was hired to perform and is integral and indispensable to that work. Here, the employees were not hired to go through security screenings and they could just as easily perform their actual job duties with or without security screenings, so the time was not compensable under the FLSA.

Posted in FLSA | Tagged FLSA, Ninth Circuit, portal-to-portal act, Post-work activity, Supreme Court Decisions

GOP Gives EEOC Epic Smackdown

By John Alan Doran The Republican members of the Senate Health, Education, Labor and Pensions (“HELP”) Committee recently released its study of the EEOC, and the results aren’t pretty for the Agency. The study blasts the EEOC for “litigation missteps”,…
Read More

2014-12-05T08:24:38-07:00

Posted on December 5, 2014

By John Alan Doran

The Republican members of the Senate Health, Education, Labor and Pensions (“HELP”) Committee recently released its study of the EEOC, and the results aren’t pretty for the Agency. The study blasts the EEOC for “litigation missteps”, wasting millions in taxpayer dollars on dubious litigation claims, an extraordinary and unacceptable backlog of pending charges, unduly aggressive litigation tactics, abuse of its authority, shoddy expert witness analysis in support of questionable cases, pursuit of cases based on wild theories, lack of transparency, and more. The study points to at least ten cases in which the EEOC was hit with monetary sanctions since 2011, including one case in which the Agency was ordered to pay an employer/defendant over $750,000.00 in attorneys’ fees, expert witness fees, and litigation costs for pursuing litigation it knew to be frivolous.

If all this sounds painfully familiar, it’s because we’ve been blogging on these very same themes since the inception of this blog (EEOC related blogs posts) It’s nice to see that at least the GOP members of the HELP Committee have finally reached our conclusions. It’s a pity that the EEOC has chosen to deny, deny, deny, rather than accept responsibility and institute reforms. Of course, that may change in January with the new GOP-controlled Congress.

Posted in EEOC | Tagged EEOC, GOP

Tardy-From-Home

By Bryan Stillwagon From the beginning, the employee had attendance and punctuality problems, and the problems didn’t improve even when the employer adjusted her schedule. After she was diagnosed with MS, the company approved intermittent FMLA leave and accommodated her…
Read More

2014-12-03T13:49:01-07:00

Posted on December 3, 2014

By Bryan Stillwagon

From the beginning, the employee had attendance and punctuality problems, and the problems didn’t improve even when the employer adjusted her schedule. After she was diagnosed with MS, the company approved intermittent FMLA leave and accommodated her request to work from home. By the end, she was working from home for all but two half-days per week. But the employer continued to insist that she log on to work at her set start time, or call in to say whether her absence was related to her FMLA. Despite working from home, her attendance and punctuality problems persisted and she was fired.

Based on earlier local cases, the employee argued regular attendance and punctuality were not essential to her position because the company permitted work from home. The Seventh Circuit court disagreed and found she was not a “qualified” for the job because she could not or would not follow her schedule even from home. The company’s “Work at Home” policy did not make punctuality and regular attendance any less essential. Taylor-Novotny v. Health Alliance Medical Plans, Inc., No. 2:12-cv-02132 (7th Cir. Nov. 26, 2014). This is an important clarification from the Seventh Circuit, but NB: this employer knew when the employee wasn’t at work, even while at home, because of computer and telephone log in procedures.

Posted in FMLA, Human Resources/Employee Relations | Tagged 7th Circuit, Accommodation, Disability

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