Top 10 Labor & Employment Law Stories of 2010: Numbers 10 and 9

We start this year’s review not only by looking back at the past year, but also by looking forward to two stories that will dominate the headlines next year.

10. The Year of the Class Action. In May, a federal jury awarded a class of 5,600 Novartis female sales reps and entry-level managers $250 million to remedy systemic discrimination against women of child-bearing age. That huge verdict notwithstanding, what made 2010 the year of the class action was the Supreme Court’s agreement to hear the appeal of the multi-billion dollar Dukes sex discrimination lawsuit against Wal-Mart.

9. The Supreme Court’s Employment Law Docket. In the last quarter of 2010, the Supreme Court heard oral argument in three employment cases: Kasten v. St. Gobain (which will decide whether a purely oral complaint triggers the FLSA’s anti-retaliation provision), Staub v. Proctor Hosp. (which will decide the viability of the Cat’s Paw in discrimination cases), and Thompson v. N. Am. Stainless (which will decided whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own).

(Don't forget to vote - ABA Blawg 100)

 

 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #158 (the Merry Christmas edition)

As has become my year-end tradition, next week I will countdown the top 10 labor and employment stories of the year. I do this for two reason: 1) I think it’s important to look back at the last year to understand where we will go next year, and 2) I always take the week between Christmas and New Year’s off to spend with my family.

As my holiday gift to everyone, enjoy David Bowie and Bing Crosby’s Little Drummer Boy, faithfully (and hilariously) recreated by Will Ferrell & John C. Reilly. Merry Christmas everyone.

(If you’re a last minute shopper and are still searching for the perfect gift for me, there are still 7 days left to vote for the top labor & employment blog at the ABA’s Blawg 100).

As a special note this week, thank you to Molly DiBianca and her Delaware Employment Law Blog for including me on her list of the top 100 employment law blogs. I encourage everyone to jump over to Molly’s blog (a fellow Blawg 100 honoree) to find the most comprehensive list of labor and employment law blogs around.

Here’s the rest of what I read this week:

Background Checks

• Newly Aggressive EEOC Sues Over Credit Checks – from John Zappe at ere.net

• EEOC Targets Another Employer for Credit Checks – from Nick Fishman at employeescreenIQ Blog

• EEOC sues over employer use of credit record in hiring – from Walter Olson’s Overlawyered

• Credit History Use Hurt African Americans, EEOC Lawsuit Alleges – from Joe’s HR and Benefits Blog

• EEOC Getting Tough On Employer Use of Credit Reports – from George’s Employment Blawg

• E.E.O.C. Sues Kaplan Over Hiring – from Steven Greenhouse at the New York Times

• Criminal Conduct Does Not Always Lead To Termination From Employment – from Minnesota Labor & Employment Law Blog

• Bankruptcy Discrimination in Hiring – from Philip Miles’s Lawffice Space

Discrimination

• Self-Righteousness and Diversity – from Rob Schwartz’s Fairness Matters

• Gender Pay Equity in 2011: The Devil Is In The Details – from Stephanie Thomas at Compensation Cafe

• Superpowers and the ADA – from Law and the Multiverse

• Too Hot v. Not: The Rest of the Story – from Iowa Employer Law Blog

• Women Still Pay a Big Price for Motherhood – from BNET

• New EEOC Rules Require U.S. Employers To Revise Procedures for Acquiring and Using Medical Information – from Employment Law Watch

• Disability Discrimination Case Asserted By Bank Teller With Epilepsy – from Atlanta Employment Lawyer Blog

• 11th Circuit Examines Religious Discrimination – from Alabama Employment Law Report

• I’ll have one more for the road – from The Word on Employment Law

Social Media & Technology

• What Can Google Books Data Search Tell Us About Employment Law Trends? – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Choose A Social Media Lawyer – from Shear on Social Media Law

• Smartphones in the enterprise: A changing landscape – from Computerworld

• Dealing with the unexpected as smartphones pervade the workplace – from Infoworld

• Cup Only Half Full for Victims of Data Security Breach – from BLEG Blog

• New York Jets’ Rex Ryan Needs to Take His Feet Out of His Mouth and Address Foot-Fetish Gate – from Shear on Social Media Law

• Online Dating, Tweets & Early Discovery – from Bow Tie Law’s Blog

Wage & Hour

• DOL’s Regulatory Agenda Shows Heavy Focus on Workplace Safety – from Washington D.C. Employment Law Update

• DOL’s Regulatory Agenda – from DOL’s Work in Progress

• Payroll Company Not an “Employer” for Wage Hour Purposes – from What’s New in Employment Law?

• OSHA Declares Texting While Driving A Workplace Hazard – from Hunton Employment & Labor Law Perspectives™

• Payroll Processor Not A Joint Employer – from The FLSA

• Trial Tactic Of Introducing Exemption Defense Disallowed: A Valuable Lesson For Employers – from Wage & Hour - Development & Highlights

HR & Employee Relations

• Bobby Petrino’s Deal Contains Only In-Term Non-Compete – from Legal Developments In Non-Competition Agreements

• Profanity as a Leadership Tool? – from Michael Haberman’s HR Observations

• Bed Bugs in the Workplace: How to Handle a Growing, Creepy HR Issue – from TLNT

Miscellanous

• NLRB Extends Right to Unionize to Group of Intermittent Employees – from Labor Relations Counsel

• The pro-business Supreme Court myth – from PointOfLaw Forum

• What to do if You’re Sued – from Matthew Gibson’s Wills and Wealth

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

DOL shares its preliminary interpretations on lactation breaks

Typically, December is a slow month for litigators. Courts stop calling juries. We all take vacations. Typically, the closer we get to Christmas the slower it gets, except, apparently, for the federal agencies in Washington. Yesterday, the NLRB published its proposed posting regulations, and the Department of Labor published its preliminary interpretation of the recent federal lactation break mandate.

Here are the DOL’s preliminary thoughts on employers’ obligations to lactating women:

• Paid or unpaid breaks? Employers are not required to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, lactation breaks are covered by the same rules that govern other work day breaks. If the employer permits short breaks, usually 20 minutes or less, the time must be counted as hours worked and paid accordingly. Additional time used beyond the authorized paid break time could be uncompensated.

• What is a reasonable break time? Employers should consider both the frequency and number of breaks a nursing mother might need and the length of time she will need to express breast milk. The DOL believes that most women will need to take 2 to 3 breaks per 8 hour shift, each lasting between 15 and 20 minutes. These guidelines, however, are just that, and will vary from woman to woman depending on specific circumstances and needs.

• What is an appropriate lactation space? An employer has no obligation to maintain a permanent, dedicated space for nursing mothers. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, provided that the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom. The DOL also believes that an employee’s right to express milk includes the ability to safely store the milk.

• What qualifies as an undue hardship for employers with less than 50 employees? The difficulty or expense must be “significant,” which is a stringent standard that employers will only be able to meet in limited circumstances.

• Is there a relationship between lactation breaks and the FMLA? No. The DOL does not believe that breaks to express breast milk can be considered FMLA leave or counted against an employee’s FMLA leave entitlement.  

The DOL is accepting public comment on these preliminary interpretations until February 22, 2011. Anyone may submit comments either electronically at www.regulations.gov, or by mail to Montaniel Navarro, U.S. Department of Labor, 200 Constitution Avenue, NW., Room S-3502, Washington, DC 20210.

This issue will remain hot in 2011 as we await the DOL’s final comments and as employers continue to figure out how to make these new obligations work in their specific workplaces.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

When did we all stop accepting responsibility?

A woman in California has filed a class action lawsuit against McDonald’s. She claims that McDonald’s temps kids to eat unhealthily by promoting their fattening food with Happy Meal toys. I know you may this hard to believe, but, yes, parents, if you feed you kids too many Happy Meals, they may get fat. If a court agrees with this lawsuit, the parents who use McDonald’s as a crutch to feed their kids will be absolved of any responsibility for the resulting obesity. Yet, is it just the cheap cardboard box and tchotchke toys, or does the obesity result from parents that are either too busy or too lazy to feed their kids healthy foods? Or, do parents that permit their children to lounge around the house watching TV and playing video games beget overweight kids? Yes, too much fast food can make you fat. But, not only is it not the only reason kids become overweight, I’d venture to guess it is not the main reason either.

We have become a society that refuses to accept responsibilities for our faults. I see it all the time in employment cases. The insubordinate employee is convinced that her race/sex/age/disability was the reason behind her termination. The chronically late employee is convinced that he is being retaliated against despite his unreliability. The overly sensitive employee shrieks that one harmless email is a pattern and practice of lascivious harassment. One theme that resonates over and over in cases I defend is a refusal to accept responsibility. Yes, employers do discriminate, and retaliate, and harass. More often than not, however, businesses simply try to do right by their employees. Yet, if you believe all of the lawsuits that are filed, corporate America is one giant group of bigots and employees are never responsible for their own unemployment.

As we approach the new year, let’s all make it a resolution in 2011 to start taking responsibility for our own faults and shortcomings. It may decrease the number of lawsuits I am called on to defend, but it will make us a more credible society.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Merry Christmas employers—NLRB proposes posting of federal labor rights for ALL covered employees

Today is National Look on the Bright Side Day. I’m having a hard time, though, finding the silver lining in the latest news to come from the NLRB. The agency is proposing that all employers that are potentially covered by the National Labor Relations Act (which is virtually all private-sector employers except for agricultural, railroad, and airline employers) notify employees of their rights under that Act. According to the NLRB's press release: “[M]any employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

The posting would be similar to that which the DOL has mandated for federal contractors. The proposed posting would state that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to choose not to do any of these activities. It also would provide examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

The NLRB is accepting public comments on this proposed rule for the next 60 days. Comments can be either submitted electronically to www.regulations.gov, or by mail or hand-delivery to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th Street NW, Washington DC 20570. I urge business

In the meantime, I will continue to try to look on the bright side.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Employee alcohol testing

Under the ADA, an employer is prohibited from making disability-related inquiries and requiring medical examinations of employees unless if the inquiries are job-related and consistent with business necessity. In September, the EEOC filed suit against Pittsburgh-based U.S. Steel, claiming that it violated these rules by requiring random alcohol testing of probationary employees.

According to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees, the ADA differentiates between drug testing and alcohol testing. The ADA does not regulate the drug testing of employees because drug tests do not qualify as medical examinations. Blood, urine, and breath analyses to check for alcohol use, however, are considered medical examinations regulated by the ADA. Employers are permitted to maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace. Employers are also permitted to conduct alcohol testing pursuant to such a rule if they have a reasonable belief that an employee may be under the influence of alcohol at work.

Random testing is just that, random. It is not tied to any reasonable belief about the employee’s on-the-job use of alcohol. I can make a very compelling argument that in any safety-sensitive position alcohol testing is job-related and consistent with business necessity. Nevertheless, and regardless of the circumstances, employers who intend to subject employees to alcohol testing should be mindful of these rules. Those that test without first consulting with employment counsel risk incurring the EEOC’s wrath.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

NLRB to permit “sweetheart” contracts

Imagine a union comes to you claiming to have signed authorization cards from a majority of your employees and offers you the following proposition. Instead of holding a secret ballot election, you recognize the union based on the signed cards. In exchange, the union will give you a sweetheart contract—a pre-negotiated contract with favorable terms and conditions. Here’s the catch. The contract has to contain a neutrality clause—a promise by the company to remain neutral in future organizing campaigns, forego secret ballot elections at any other facility, and recognize the union based upon a presentation of an authorization card majority at any other facility.

In Dana Corp. (10/6/10) [pdf], the NLRB sanctioned this practice as lawful under federal labor laws, and rejected a challenged by a group of anti-union employees that their employer had illegally colluded with the union:

The ultimate object of the National Labor Relations Act … is “industrial peace.” [I]t is well settled, consistent with those policies, that an employer may voluntarily recognize a union that has demonstrated majority support by means other than an election, including … authorization cards signed by a majority of the unit employees. Courts have endorsed voluntary recognition and deemed it “a favored element of national labor policy.” The Board should hesitate before creating new obstacles to voluntary recognition….

Categorically prohibiting pre-recognition negotiations over substantive issues would needlessly preclude unions and employers from confronting workplace challenges in a strategic manner that serves the employer’s needs, creates a more hospitable environment for collective bargaining, and—because no recognition is granted unless and until the union has majority support—still preserves employee free choice.

Just because you can agree to this “sweetheart” relationship with a union does not mean that you should. As the NLRB noted, “In practice, an employer’s willingness to voluntarily recognize a union may turn on the employer’s ability to predict the consequences of doing so.” An employer’s willingness to voluntarily recognize a union will also turn on its ability to predict the outcome of a secret ballot election. Currently, unions win 65.6% of secret ballot elections. Before you agree to take a union up on its voluntary recognition offer, you need to make an educated guess on whether your company falls within the one-out-of-three that wins a union election. If so, reject the union’s offer and opt for the election. Otherwise, you might be hedging your bets when you don’t have to.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.