In a 2-1 decision, the 8th Circuit recently ruled the government's press release announcing it "found" violations of law against an employer, although false, did not materially breach its settlement agreement with the employer. The Immigrant and Employee Rights Section of the Department of Justice (IER) investigated allegations that the employer discriminated against immigrant workers. Rather than litigate, the parties settled. The settlement agreement included recitals stating that the IER had "reasonable cause to believe" the employer had engaged in unlawful practices, but that the employer denied liability.
After settling, the IER published a press release about the settlement. The release stated its investigation "found" that the company had engaged in the alleged unlawful practices. The employer notified the IER that its press release was a breach of their agreement, and it refused to pay out as it had promised. The IER then sued to enforce the agreement.
The 8th Circuit Court found the IER's litigation and public relations conduct "troubling" and "suspect." But the agreement did not expressly limit what the government could publish, and therefore the press release was not a material breach of the agreement. Judge Beam dissented, stating that the IER was under an obligation to describe the agreement accurately, which should have prevented the IER from publishing that it had "found" any violations of the law.
Take away? The government agencies care about their press releases. If you expect specific language in a government release, negotiate for it.
United States v. Nebraska Beef, Ltd., No. 17-1344 (8th Cir. Aug. 27, 2018).
Employer Narrows "Collective" Actions Thru Arbitration Agreement.
Last term, in Epic the Supreme Court ruled the National Labor Relations Act ("NLRA") is not a "get out of arbitration free" card. Individual employees who sign an appropriate arbitration agreement can be compelled to arbitrate even their "concerted" claims.
Now, according to the Sixth Circuit, that ruling also tells us employees cannot avoid arbitration when they bring collective claims under the Fair Labor Standards Act ("FLSA"). While acknowledging that the FLSA "gives employees the option to bring their claims" as a "collective" action, the court explained, nothing in the FLSA requires collective action. Without a "clear and manifest" statement of congressional intent to the contrary, the Federal Arbitration Act ("FAA") applies and an employee can sign away the right to proceed collectively. Indeed, the Sixth Circuit reiterated that, under Epic, the "fundamental attributes of arbitration" cannot be attacked, and it explained that one "fundamental attribute" is its "historically individualize nature." Gaffers v. Kelly Services, Inc.
NLRB General Counsel Peter Robb this week directed his staff not to object when an employee, who is trying to decertify a union, moves to intervene in a related unfair labor practice case. Typically, when employees try to decertify the union that represents them, the union's Pavlovian response is to file a charge claiming the employer induced or assisted the decertification effort. Unions tend to argue it is inconceivable employees would be dissatisfied with their services without a nudge from the employer. In the past, the NLRB has typically prevented employees from intervening in inducement/assistance charges. Unfortunately, as a result, employees (and their advocates) rarely have the opportunity to speak for themselves and deny that the employer caused the decertification. The GC's directive means employees are more likely to be heard in all aspects of the decertification process. GC Robb's move is another example of his plan to bring better balance to the enforcement of the National Labor Relations Act.
An employee was unable to return to work full time because she was experiencing postpartum depression. She worked half time instead and, according to the employee, she was still able to do everything that was required of her position as a Human Resources Generalist. When the employee requested to extend her half time schedule for the foreseeable future, her employer terminated her employment because the reduced schedule overwhelmed other employees and caused the department to function poorly.
The crux of this lawsuit under the ADA was whether the employee was "qualified for her position." The trial court decided the employee was not qualified because she could not perform the essential function of her job with or without accommodation. It granted the employer's motion for summary judgment on all the claims. The Sixth Circuit Court of Appeals, however, reversed and held that the employee had presented sufficient evidence to preclude summary judgment when she and another employee testified she could do all her work on the reduced schedule.
This appellate decision punched a hole in the argument that an employer gets to determine the essential functions of its jobs. Instead of taking the employer's word (as expressed in job descriptions and by management) for job duties, the court ruled that employers must tie time-and-presence requirements to other job requirements and explain why an employee cannot complete essential functions unless he or she is present 40 hours a week.
The case is Hostettler v. The College of Wooster, No. 17-3406 (6th Cir. July 17, 2018).
The Ninth Circuit recently reminded employers to keep state statutes regarding lawful off duty work in mind. R.C. Willey had a policy prohibiting employees from arriving at work with a blood alcohol level above .04%. When an employee came to work with a higher BAL, the employer discharged him. The policy violation provided a non-discriminatory basis for the termination, and the employer won summary judgment on an ADA claim. However, under Nevada law, an employee cannot be discharged for engaging "in the lawful use . . . of any product outside the premises of the employer during the employee's nonworking hours, if that use does not adversely affect the employee's ability to perform his or her job or the safety of other employees." Nev. Rev. Stat § 613/333(1)(b). At the time, the employee was on light duty work and he might have been able to do his extremely limited duties while just a little drunk. Now, a jury will have to decide whether the employee's "lawful off duty" alcohol consumption "adversely affected" his ability to do his limited duties or the safety of others. O'Brien v. R.C. Willey Home Furnishings, No. 16-16677 (9th Cir. July 13, 2018).
More than half of the states have a statute that protects employees from adverse employment actions because of their off-duty activities. Don't focus exclusively on the federal claims; sometimes the state bites you, even outside California.
The employer was in the middle of a union-organizing drive and had been fighting rumors that it paid managers bonuses to fight the union. One employee took a bonus-request form from a team leader's desk. The form seemed to be asking for a bonus for the team leader's anti-union efforts. The employee gave a copy of the form to a second union supporter. The second union supporter posted the form to a private, union supporting Facebook group. The employer discharged the second union supporter for violating the employer's social media policy.
Under the recent Boeing standard, if the rule is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. Here, the work rule ordered "Maintain the confidentiality of the Company's trade secrets and private or confidential information," and it called out "internal reports, policies, procedures, or other internal business-related confidential communications" as well as trade secrets. The Division advised that the work rule was lawful because it did not explicitly refer to employees, their terms and conditions of employment, or any other NLRA-covered communications. The Division also advised that, although the Facebooker was engaged in protected concerted activity, he forfeited that protection. Posting the documents was "such disloyalty" that it fell outside the NLRA's protection. The union supporter knew that the form had been wrongly procured.
Note: Reason is enjoying a revival at the Board. But note also: If the employees had only repeated the information readily viewable on the Team Leader's compensation form, and had not copied it, all their discussion about the form – including that the employer was paying bonuses and, besides, that the employer was rolling in cash and could afford to increase wages – would have been protected under the NLRA. Try to put confidential information away.
This blog post has been picked up by the Employment Law Daily Newsletter.
While investigating defendant La Piedad's FLSA compliance, the Department of Labor subpoenaed, among other things, documents with the names and addresses of other businesses owned by defendant's shareholders. La Piedad informed the DOL that it did not have responsive records. Rather than investigate that response, the DOL immediately moved for an order holding defendant in contempt. The district court rubber stamped the motion, granted it without a hearing, and didn't hold the DOL to its burden of proof. On appeal, the Eighth Circuit admonished the lower court's "misuse of the civil contempt power." The court highlighted the DOL's complete failure to meet its clear and convincing burden to show that defendant had custody or control over those documents and reversed the order. Acosta v. La Piedad Corp., No. 17-1845 (8th Cir. July 3, 2018).
The courts continue to protect employers from government overreach, but consider the cost. Here the employer had to pursue its rights to the court of appeals, all because the DOL couldn't be bothered to issue its subpoena to the shareholders themselves.
On June 27, 2018, the U.S. Supreme Court overturned a 41-year-old standard set in Abood v. Detroit Board of Education. Under Abood, when a union became the exclusive bargaining representative for a group of public employees, those public employees who chose not to belong to the union could still be required to pay their "fair share" of union fees to cover the cost of collective bargaining. Now, workers may choose not to be members of the union and not pay anything to support the union. The case is Janus v. AFSCME.
In a 5-4 vote, the Court found the requirement to pay "agency" fees violates public workers' First Amendment free speech rights by forcing them to fund union speech (i.e. collective bargaining). Even though agency fees may go towards collective bargaining on behalf of both union and nonunion members, workers can no longer be forced to pay for it.
So what does this mean for public-sector unions? Less financial stability. Public employees now will have to specifically consent to make payments to their unions, which is expected to reduce the funds available to public unions.