Like most, I’m off today. The Department of Labor, though, never sleeps. It has an entire micro-site that celebrates today’s holiday:
Happy Labor Day. Enjoy your BBQs. I’ll be back tomorrow with a story on the treatment of pregnancy as a disability under the ADA.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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Bad puns aside, last weekend was not a good one for the Northeast. Other than an extended power outage, Irene’s worst spared my family in suburban Philly. Others were not so lucky. A Lesson In Social Media from Hurricane Irene, from Dan Schwartz’s Connecticut Employment Law Blog, is a must read for everyone.
As for other stuff to read this week, how about:
You don’t need to vote for me (although it would be nice) but you should vote. I think I can speak for all of my fellow bloggers when I say that we appreciate it.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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We spend a lot of time debating the respective merits of fine point of the law. The reality, however, is that judges are people too. Despite their training, robes, and gavels, the decision of many cases comes down to one key fundamental question: did one side treat the other side fairly? Courts don’t like litigants that try to pull a fast one.
Hergenreder v. Bickford Senior Living Group [pdf] provides a perfect example. It also illustrates why arbitration of employment disputes often is a losing battle.
Bickford filed a motion to compel Hergenreder to arbitrate her disability discrimination case under an arbitration clause buried in its employee handbook. Section 12 of the 16-section handbook—for which Hergenreder had signed an acknowledgment that she had read and understood its terms—provides as follows: “Dispute Resolution Process Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” The separate, 20-page DRP, in turn, required that employees submit all claims to arbitration. The employee testified that she never saw the DRP, let alone signed for it.
The court concluded that simple inclusion of a reference to the DRP in the handbook did not constitute a binding and enforceable contract between Hergenreder and Bickford to arbitrate all employment claims:
The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]”
[T]here is no evidence that the DRP was “posted” in a place—either physical or electronic—available to Hergenreder, that there were meetings at which Hergenreder was notified of the policies, or that Hergenreder was aware of the DRP at all…. Bickford does not argue that it actually distributed or made the DRP available to Hergenreder.
Employers, if you are going to require employees to arbitrate their claims against you, do yourself a favor and at least have the employee sign a separate arbitration agreement. You might succeed on enforcing an alternative form of an alternative dispute resolution agreement (such as a handbook clause). But, you will spend the money you perceive you are saving through arbitration by trying to enforce your right to arbitrate.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign.
In Dana Corp., decided in 2007, the NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”
Yesterday, however, in Lamons Gasket Co. [pdf], the NLRB reversed Dana Corp. and did away with post-card-check decertification elections.
In reaching its conclusion, the majority relied upon statistical evidence of requests for Dana notices and resulting decertifications:The Board argued that Dana is unnecessary because employees successfully decertified the voluntarily recognized union in only 1.2% of the total cases in which Dana notices were requested. I look at the numbers differently. Dana is needed because 27% of cases in which elections were held resulted in decertifications. It is intellectually dishonest to draw conclusions from the 98.8% of cases in which no further action was taken and which we know nothing about.
I can also offer anecdotal evidence of the need for Dana. I was one of the successful Dana elections. In my case, the employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. The entire unit voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice.
For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice about unionization through a secret ballot election. If we can use a Dana election to ensure that employees have the right to have their voices heard in a secret ballot election, what’s the harm?
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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[B]eing attractive … helps you earn more money…. The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third—a lifetime difference, in a typical case, of about $230,000.
How could we remedy this injustice? … A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?The lawyer in me says, “Ca-ching!” The management advocate in me says, “Wait, what?!” The good-looking-but-won’t-stop-you-dead-in-your-tracks-good-looking-guy says, “This might make sense.” And the realist in me says, “Can you imagine a more subjective, unworkable standard for discrimination litigation?”
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It’s no secret that I’m not a fan of arbitration of employment disputes. Conventional wisdom says that binding arbitration keeps down costs and speeds up resolutions. I’ve yet to be convinced. Many employers, though, continue to drink the arbitration Kool-Aid by requiring employees sign alternative dispute resolution agreements as part of their employment. Sherwin-Williams appears to be one of them. Its choice of one key word in its Problem Resolution Procedures, however, cost the paint company its chance to litigate an ex-employee’s age discrimination claim in its forum of choice.
The word at issue in Hyde v. Sherwin-Williams Co. (8/25/11) [pdf] is “may.” Sherwin-Williams’s Problem Resolution Procedures provide:
These procedures may be used by employees to challenge the unresolved differences regarding application of Company policies, procedures or practices which affect their employment situation. These procedures are intended to be an exclusive, final and binding method to resolve all covered claims to the fullest extent permitted by law. Failure to use these procedures may preclude employees from pursuing any other legal right they may have in court or in other forums.
An Ohio appellate court concluded that the use of the word “may” disposed of Sherwin-Williams’s attempt to force an ex-employee to litigate his age discrimination claim in court:
We find that Sherwin-Williams’ repeated representations that an employee’s failure to follow the PRP “may” preclude that employee from seeking redress in outside forums expressly contradicts appellants’ position that the procedures outlined in the PRP are the exclusive method for resolving employee disputes. By virtue of the language used … appellants implied that there would be circumstances where an employee would not be prevented from pursuing resolution of their legal claims in outside forums, i.e., that the PRP procedures are not mandatory, final, or binding.
What’s worse for Sherwin-Williams is that 8 years ago another panel of the same appellate court reached the same conclusion about the same language in a prior version of the same PRP.
What’s the takeaway from this case for employers? In drafting agreements and policies, words matter. If you mean “must,” say it. Don’t say “may” (especially when a court has already told you that “may” doesn’t pass muster).
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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I love Twitter. Why, you ask? Because it routines scoops the major news outlets for breaking stories.
Tuesday was a perfect example. I felt my building shake at 1:51 pm. My first reaction was that The Avengers set a few blocks down the street had blown up something big, but the sway was too pronounced and too long to have resulted from a man-made Hollywood explosion. I immediately turned to Twitter, and confirmed what I had thought—it was an earthquake. With the click of mouse and the scroll of bar, I learned in an instant that my colleagues and friends all up and down the east coast had, to varying degrees, felt what I had felt. CNN had the story 10 minutes later, and Cleveland.com a few minutes after that. Who needs the news when you have Twitter?
And now for something completely different…
I’d be remiss if I didn’t remind everyone that nominations are still open for the ABA Blawg 100 (until Sept. 9), and the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12). Thanks to everyone who’s voted for me so far, or will vote over the next couple of weeks.
Here’s the rest of what I read this week.
Discrimination
Social Media & Workplace Technology
Employee Relations & HR
Labor Relations
Wage & Hour
Until next week:
(Network has aged extremely well. 1976 could easily be 2011. It was eerily prescient.)
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.
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