Stoel Rives to Host Employee Free Choice Act Seminar in Portland June 11
If passed in its proposed form, the Employee Free Choice Act ("EFCA") will revolutionize federal labor laws by allowing unions to organize without a secret-ballot election. Other onerous provisions include shortening the time to negotiate a first contract and, if the parties do not agree, allowing an arbitrator (a judge) to decide the terms of the first contract. While Congress is debating several compromises over EFCA, just about any version of the law will tilt the playing field sharply in favor of labor unions. Union and non-union employers must be prepared to face new organizing tactics in light of EFCA and the unions’ sophisticated use of the Internet.
Please join Labor & Employment attorneys Victor Kisch and Dennis Westlind for a seminar about EFCA and the do’s and don’ts for remaining union-free in the new environment. We will also discuss other likely changes to labor laws. The seminar will cover:
- How will EFCA make it easier for unions to organize? What can a non-union employer do under EFCA?
- How do unions organize in the age of Facebook, MySpace, Twitter, chat rooms, websites, text messages, email and so on?
- Effective no solicitation policies;
- What key issues make a work force vulnerable to union organizing? How can an employer address employee concerns?
- Salts -- If union organizers seek employment at your company, what can you do?
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When: |
Thursday, June 11, 2009 |
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Cost: |
Complimentary (lunch included) |
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Where: |
Stoel Rives LLP |
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Parking: |
We will validate parking for most nearby parking garages. |
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RSVP: |
Space is limited! Click here to register online by June 9. |
Labor Groups Hail Sotomayor Nomination
Judging from organized labor's reaction, Judge Sotomayor may be a pro-labor justice if her appointment is confirmed by the Senate. "Judge Sotomayor is a sound, progressive judge who is blessed with a brilliant legal mind," said United Steelworkers President Leo W. Gerard. Praising her nomination, AFL-CIO President John Sweeney says Sotomayor possesses a “direct and personal understanding of the struggles America’s workers endure every day.” She's also received these glowing recommendations from the SEIU, Change to Win and the Labor Council for Latin American Advancement, just to name a few.
Labor's love affair with Judge Sotomayor goes back to 1995, when she issued the injunction that effectively ended the 1994-95 baseball strike. (In announcing her nomination, President Obama was quick to point that she singlehandedly saved the American Pastime.)
While organized labor falls all over themselves to praise Judge Sotomayor, employers' groups are taking a more cautious approach. The U.S. Chamber of Commerce, known to butt heads with unions over many issues (notably the Employee Free Choice Act), is still weighing whether to endorse Sotomayor. While we don't necessarily see anything in her background to make us nervous, such a warm reception from labor unions certainly should raise an eyebrow or two.
Meanwhile, for those who are interested, here's a clip of Judge Sotomayor speaking about her nomination:
Judge Sotomayor's Record Shows Even-Handed Approach to Employment Law
President Obama recently nominated Judge Sonia Sotomayor to replace outgoing Justice David Souter on the United States Supreme Court. If you're like us, you're wondering what her nomination might mean for employment law. While it's never easy to predict how a nominee will rule once on the Supreme Court (just ask George H.W. Bush), early indications are that Judge Sotomayor takes an even-handed approach to employment law issues.
In her 16-year career on the bench, first as a District Court Judge and then as a Judge on the Second Circuit Court of Appeals, Judge Sotomayor has been involved in over 100 opinions on employment cases. She's ruled in favor of both employers and employees, and her decisions do not seem to be skewed one way or the other. Click here for a list of of Judge Sotomayor's employment law decisions.
If you look through this list, you'll see that she's made several rulings in favor of employers. While some conservatives are already attacking Judge Sotomayor for "judical activism," they will find no support for those charges in her employment law record. Assuming she takes this same approach on the Supreme Court, we can expect her to be a critical swing vote on future employment cases.
Tomorrow: Judge Sotomayor's Labor Record
Exotic Dancers Are Employees, Not Independent Contractors
Every now and then we need a reminder to illustrate the dangers of misclassifying employees as "independent contractors." Last week, the Montana Supreme Court provided such a reminder, ruling that exotic dancers were employees, not independent contractors. Click here to read the opinion in Smith v. TYAD Inc. d/b/a Playground Lounge & Casino.
In Playground, the employer required each dancer to sign a contract acknowledging that she would be considered an “independent contractor" who would pay a "stage fee" to “rent” the stage and a dressing room for every night she worked. In return, each dancer would retain all tips and dance fees. According to the Montana Supreme Court, not only were the dancers actually employees entitled to payment of minimum wage for all hours worked, but the "stage fees" were illegal kickbacks. It held the dancers were entitled to payment of hourly wages, overtime, repayment of the "stage fees" and penalties.
Does Playground have any lessons for the 99.99% of employers that don't employ exotic dancers? Absolutely: all employers should be careful when classifying anyone as an "independent contractor." Whether an individual is properly classified as an employee or an independent contractor is a complex question of both state and federal law. Besides being held liable for back pay and overtime, employers who misclassify employees can be charged with unpaid wage withholdings and unemployment insurance premiums. Worse yet, employers who don't pay workers' compensation insurance on misclassified employees can find themselves in a world of hurt if one of those employees sustains an on-the-job injury. (The Playground Lounge should be thankful none of its dancers fell off the stage.) For more information on the criteria courts and agencies use, check out this page on the IRS' Independent Contractor Status Test.
No Discrimination in Firing Employee Who Used Spit to Remove Expiration Dates
Another slow news day, another fun case: the Texas Court of Appeals affirmed summary judgment in favor of Frito Lay, Inc. and against a former route sales representative who was fired for using his saliva to remove the "best before" dates from expired products. Click here to read the decision in Cantu v. Frito Lay, Inc.
When one of Frito Lay's customers caught Cantu using his spit to remove expiration dates, it banned him from entering any of its many stores; Frito Lay then terminated him, following its policy to terminate any employee who is banned from a customers' premises. Cantu sued Frito Lay claiming age and sex discrimination, because Frito Lay did not also fire a younger female sales rep who was also banned from the same customer's stores.
Well, it turned out not to be so simple. The younger female employee was banned from only one store because she was gossiping about that store's manager, who happened to be her relative; further, that manager intervened and asked that she not be reprimanded. Cantu, on the other hand, was barred from all of the customer's stores, and as the court noted, had “wiped bags of Frito-Lay chips with his saliva, conduct that is qualitatively different and distinct from the imprudent sharing of personal information.”
Is there a lesson to be learned here? We can think of two. First, don't use spit to remove expiration dates. Really. Second, when disciplining employees, make sure that you apply consistent standards to similar behaviors. Cantu lost because the younger female employee was not similarly situated, as she had engaged in much less egregious misconduct. Had she also been caught smearing her spit on the merchandise, the case may have turned out differently.
EFCA Update: Arlen Specter and "Quickie Elections"
The latest news on the Employee Free Choice Act (EFCA) is a possible compromise in which EFCA's card-check provision is replaced by a "quickie election" procedure - where an election must be held a very short time (a week to three weeks) after the union requests one from the National Labor Relations Board (NLRB). Another possible compromise provision would be to allow unions equal time with employees if employers choose to hold "captive audience" meetings with employees during a campaign. Both proposals would allow for elections in place of the proposed card check provision, but would sharply curtail employers' ability to express their views to their employees. To learn more, read this article from the Washington Post.
Recently converted Democratic Senator Arlen Specter continues to hold the EFCA spotlight: according to this article in the Pittsburgh Post-Gazette, there is speculation afoot of a deal between Senator Specter and the AFL-CIO and in which Senator Specter would support EFCA in exchange for labor's full backing the 2010 Senate race. If Specter changes his position and backs EFCA, it might pass without substantial amendments.
To read more about EFCA, check out the Stoel Rives World of Employment's EFCA Coverage.
Supreme Court Clears Pension Plan That Differentiated Pregnancy Leave Prior to the PDA
Today the U.S. Supreme Court held that an employer does not violate the Pregnancy Discrimination Act (PDA) if it pays pension benefits based in part on pre-PDA calculations that gave employees less retirement credit for pregnancy leave than for other types of medical leave. Click here to read the Court's decision in AT&T Corp. v. Hulteen.
The employer in Hulteen, AT&T, based its pension calculations on a seniority system based on years of service minus uncredited leave time. AT&T gave less credit for pregnancy absences than it did for other types of medical leaves. When the PDA was enacted in 1978, AT&T replaced its old plan a plan that provided the same service credit for pregnancy leave; it did not, however, make any retroactive adjustments for pre-PDA pregnancy leaves. Some female employees, including the plaintiff Hulteen, received less credit for pre-PDA pregnancy leaves, and therefore received smaller pensions.
The lower courts held that this violated Title VII; however, the Supreme Court reversed 7-2. Because AT&T's pension payments accord with the terms of a bona fide, non-discriminatory seniority system, they are insulated from challenge under Title VII §703(h). (The system was considered non-discriminatory because, prior to enactment of the PDA, an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate onthe basis of sex.)
Major Budget Increases for Federal Labor and Employment Enforcment Agencies
The Obama Administration has released its fiscal year 2010 budget request. Among the items are several increases for the federal agencies that oversee labor and employment matters. Here are some highlights:
- $104.5 billion to the Department of Labor, an increase of 10 percent, to increase its staff and enforcement activity.
- $283 million for the National Labor Relations Board, an increase of 7.9 percent.
- $267 million for the Equal Employment Opportunity Commission, an increase of 6.6 percent, to increase staffing.
- $145 million of the Justice Department's Civil Rights Division, an increase of 18 percent.
- $112 million to the Department of Homeland Security for the E-Verify program.
Assuming they are passed by Congress, these increases reverse a long trend under the Bush Administration to cut funding to the federal agencies that enforce labor and employment laws. Employers can expect increased enforcement of those laws by the federal government in the years to come.
EEOC Issues Swine Flu Guidance
The Equal Employment Opportunity Commission (EEOC) has issued two helpful resources for employers coping with the Swine Flu outbreak. First, the Commission has issued this technical assistance document on ADA-Compliant Employer Preparedness For the H1N1 Flu Virus. It answers basic questions about workplace preparation strategies for the 2009 H1N1 flu virus (swine flu) that are compliant with the Americans with Disabilities Act (ADA).
Second, the Commission has issued this notice on Employment Discrimination and the 2009 H1N1 Flu Virus, reminding employers that the Swine Flu outbreak is not an excuse to discriminate against employees and potential employees on the basis of disability or national origin. Of course, you didn't need that reminder because you read the Stoel Rives World of Employment, right?
New Senate Bill Would Bar Mandatory Arbitration of Employment Claims
A bill introduced in the United States Senate late last month will, if passed, prohibit mandatory, pre-dispute arbitration agreements in employment. Senate Bill 931, also known as the Arbitration Fairness Act of 2009 (AFA) was introduced by Sen. Russ Feingold (D-Wis.) and seven co-sponsors. A similar bill, HR 1020, was introduced in the House of Representatives by Rep. Hank Johnson (D-Ga.) and 36 co-sponsors.
If passed, the AFA will amend the Federal Arbitration Act (FAA), and will apply only to disputes or claims arising on or after the date of enactment. Why the AFA? Sponsors and supporters believe that while arbitration is a good way to settle disputes, pre-dispute arbitration agreements in employment are unfair. For more details, click here to read Sen. Feingold's press release on the AFA.
It would not surprise us if the AFA becomes law this term. If so, employers will no longer be able to require employees to agree to resolve employment disputes through arbitration. As a result, more cases will go to the state and federal courts and employers will pay more to resolve workplace disputes.
Swine Flu May Cause Sick Leave Changes
Judith Warner wrote this interesting editorial in today's New York Times on how the Swine Flu may force changes in sick leave policies. Warner concludes by advocating for the Healthy Families Act, which would require employers who employ 15 or more employees to provide up to 7 paid sick days per year. This flu outbreak may give the Healthy Families Act the push it needs to become law, so watch for more updates
In the meantime, wash your hands frequently, don't lick pigs, and visit PandemicFlu.gov for the latest information on the Swine Flu.
