The Legal Intelligencer Blog

Organized Labor Gets Their Men

By Eric B Meyer,

Special to The Legal

 

Organized labor is jumping for joy.

 

President Obama announced recently that he would recess appoint Craig Becker and Mark Pearce to the National Labor Relations Board (NLRB).

 

Becker and Pearce will fill two of the three vacancies on the NLRB, bringing the total number of Board members to four. Of the four NLRB members, three are considered pro-labor (read: friends of organized labor).

 

Pearce has been a labor lawyer for his entire career, representing unions in Buffalo, NY. Business interests did not exactly “endorse” Pearce, as a NLRB nominee. “Tolerate” is a better word. Many expected that the Senate would approve the nominations of both Pearce and Brian Hayes, a staffer for Sen. Mike Enzi (R-WY). The practical effect would be that one would cancel out the other.

 

Although the business community may have tolerated Pearce, there aren’t enough four-letter words to describe its feelings for Becker.

 

Quite likely, the feeling is mutual.

 

Becker is the associate general counsel for the Service Employees International Union (SEIU). And he is no friend to employers. The Wall Street Journal labeled Becker as an advocate for a new "body of campaign rules" that would limit drastically the ability of employers to argue against unionization.

 

With Becker and Pearce on the NLRB, employers can expect change.

 

So do you know any good labor attorneys?

 

This is the question I raised over the weekend on Twitter when I informed my readers of the recess appointments.

 

In a recent blog post, I wrote that the Employee Free Choice Act (EFCA), a measure that would effectively eliminate secret ballot elections for employees and make it easier for unions to organize businesses, might never make into law during this Congressional session. I stand by that prediction.

 

However, even without EFCA, employers are going to be in for a rude awakening with Pearce and Becker on the NLRB. Even absent legislative approval, expect the following changes in the workplace:

 

1. A HUGE spike in union elections. Unions have waited to ramp up organizing campaigns until EFCA became law under the Obama Administration. It hasn’t happened. However, now that the next best thing has happened for organized labor, expect to see a large increase in union organizing efforts over the next several months.

 

2.   Shorter election times. Currently, elections take about six to seven weeks from the time the NLRB processes a petition for election. That time should drop by at least half, if not more. In fact, we may not be speaking about election times anymore in terms of weeks, but rather in days.

3.   Drastic restrictions on employer speech. Becker has argued that employers should be banned from holding mandatory meetings — where all employees are paid for their time — to offer the company’s views on unionization and the damaging effect it could have on employment.

4.   Big increases in union speech. Becker believes that if an employer distributes printed materials to employees on company property, then the employer must allow access to the union to hand out pro-union materials on company property.

5.   A one-sided election process. Becker once wrote in a law review article that employers should not be allowed to attend NLRB hearings about union elections. He also believes that employers should not have the right to challenge election results, even with evidence of union misconduct. Becker also believes that union elections should be removed from work sites — where employees vote currently — and moved to “neutral grounds” or conducted via absentee mail ballot. Further, Becker would prohibit employers from having observers at the polls to challenge ballots. With a 3-1 majority on the NLRB, Becker’s views may become governing law.

And these are just some of the pre-election changes. Expect an overhaul of the collective bargaining process and the enforcement of unfair labor practices.

 

Bottom line: If your business is not prepared to address unionization, you’d better get started…FAST!

 

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter.

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

 

 

  

Scott Brown In. Employee Free Choice Act Out. Union Spirits Down. Union Organizing Campaigns Going Up

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Last week, Scott Brown pulled off something that no Republican had done in Massachusetts in over three decades. He won a Senate election.

In achieving what three weeks ago was considered impossible, Scott Brown and the GOP have cast a major monkey wrench into a series of reforms that appeared headed to vote in early 2010.

Why?

Until last week, the Democrats held 60 seats in the Senate, a supermajority. And with a supermajority, the Senate could have invoked cloture on any bill. Cloture is the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter and thereby overcome a filibuster.

No 60 votes, no cloture. No cloture, no voting on any bill in the Senate. No voting on any bill in the Senate, no legislation gets enacted.

Organized labor’s agenda takes a huge hit.

One such bill that now may never make it to a Senate vote is the Employee Free Choice Act (EFCA), a measure that would effectively eliminate secret ballot elections for employees and make it easier for unions to organize businesses. On the list of union priorities in the Obama administration, it wouldn’t be a stretch to list health care as 1 and EFCA as 1a.

Last week’s election aside, even with a supermajority in the Senate, the Employee Free Choice Act did not have votes to get to cloture. Both Sens. Blanche Lincoln, D-Ark., and Arlen Specter, D-Pa., had gone on record as not only opposing EFCA’s card check provision, but also refusing to invoke cloture on the bill. (Other Senate Democrats had announced their opposition to card check, but had not taken a public position on cloture).

Yet, Specter breathed new life into the EFCA in August 2009, when he announced to a Netroots Nation conference held in Pittsburgh that he expected a cloture vote on a modified version of the EFCA. Speculation was that this modified EFCA would include quickie elections and best, final offer arbitration.

However, with the election of Brown in Massachusetts, Specter and the Democrats will need at least one Republican to support the modified version of the EFCA in order to get to cloture. At this point, that’s about as likely as Yankees’ third baseman Alex Rodriguez defeating John Kerry in Massachusetts’ next Senate elections in 2014.

Unions are down, but certainly not out

Even without the EFCA, don’t expect organized labor to lie down. Until last week, many big names in organized labor were forecasting an EFCA vote in the first few months of 2010. Under existing law, if organized labor loses a union election, it must wait a full year until it may attempt to organize the same employer. With the EFCA, that rule wouldn’t change. However, with the EFCA making unionization that much easier (and less expensive), unions had incentive to dial down their organizing efforts until its passage.

The statistics confirm this. The Bureau of National Affairs (BNA) reported that there were fewer representation elections conducted by the National Labor Relations Board (NLRB) during the first half of 2009 as compared to the first half of 2008, and the number of employees eligible to vote in the 2009 elections dropped by more than 40% compared to the number of eligible voters in 2008.

Unions can no longer afford to hold out for the passage of the EFCA. Unions are funded on union dues. Union dues are paid by union members. Fewer union members equals less money for unions. Less money for unions means less unions. Therefore, expect to see a marked increase in union organizing efforts over the next several months. Whether these organizing efforts bear fruit may be the best barometer we have in gauging public sentiment towards organized labor and unionization.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Mr. Meyer via e-mail and follow him on Twitter.

What Have You Done About Employee Use of Facebook and Twitter?

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

 A Good Lawyer Can Admit When He’s Wrong

A few months ago, I had a blog post about social media policies. I had already developed a few of these policies for clients, as well as our firm’s social media policy. Confident that I knew my stuff, my blog post focused on the rules and restrictions that form the backbone of a great social media policy.

A few weeks ago, I re-read my blog post. When I finished reading it, the first thing I thought to myself was, “This sounds like something a lawyer would say.”

And that’s not necessarily a good thing.

A short time after reading my blog post, I really got an eye-opener when I spoke at a global conference in Boston as a part of panel discussion on the risks and rewards of employee use of social media. My role at this conference was the risk manager. So I delivered my best gloom and doom spiel. However, the audience -- chock full of business owners and decision-makers -- wasn’t having it. 

In fact, the general consensus in the room among the non-attorneys; i.e., everyone in the room except me, was that employees should be encouraged to use social media. And too many rules may have a chilling effect.

I have friends in human resources who feel the same way. Shortly after the conference, I read Mike VanDervort’s fabulous blog post at “The Human Race Horses.” VanDervort, an HR specialist, offered several tips and suggestions for human resources professionals to increase use of social media.

So I’ll admit it. I was guilty of over-lawyering. But the blinders are now off. I’ve now grasped that too many rules and not enough guidance may send the wrong message to employees who enjoy their jobs and who can help strengthen a company’s brand by sharing the company’s vision through the use of social media.

Then Again, a Little Protection Couldn’t Hurt 

Even social media’s top advocates must acknowledge that trusted employees –- even those with the best of intentions -– can put their employers at risk by using social media.  You’ve heard about what happened at Domino’s Pizza, right?

So why is it, then, that if so many people in the workplace are making use of social networking sites, and so many businesses promote employee use of social media, that so many companies have yet to develop and implement a social media policy?

How many businesses do not have social media policies drafted and implemented? In 2008, 90 percent of them didn’t! This year that number has fallen, but not by much. Just over 1 in 3 employers has a social media policy drafted and implemented.

If you don’t have a social media policy, don’t fret. You’re definitely not alone.

What You Need to Do 

A little older and little wiser, below I offer five suggestions on how to draft and implement a successful social media policy. Some of the information comes from my first blog post; it wasn’t all bad. Heck, I even have a few more rules that I recommend to clients. Other tips flow from my continued immersion in social media and my personal encounters over the past several weeks.

Much of what I say below also comes from some of the best social media experts that HR has to offer. Jessica Lee, the editor of the blog “Fistful of Talent,” an “upscale HR pro,” and one of my favorites on Twitter, has a great blog post on what makes a good social media policy. Lee’s post links to another great article by Sharlyn Lauby. Lauby specializes in employee training and HR consulting and is also one of my Twitter faves. We’ve even worked together on a few social media articles (here, here and here). As I do, both Lee and Lauby advocate a mix of rules and guidelines for a social media policy.

And now, my five keys to social media policy success:

1. Think. Don’t Google. Developing a social media policy does not mean plugging “sample social media policy” into your favorite search engine and “borrowing” the first policy you find. It’s OK to get some ideas for social media policies by reviewing ones you find online.  However, social media policies are not one size fits all. Instead, the best social media policies reflect the company’s philosophy, culture and goals. Before putting pen to paper, this process requires both careful planning and introspection. Conversely, “Ready, Fire, Aim” is a guaranteed recipe for failure.

2. Incorporate both guidelines and rules. I have come across several social media policies that I'll term "permissive." Really, they are nothing more than guidelines for employee use of social networking sites (e.g., be polite, think before you post, consider the company's vision, etc.). For an example of what I mean, check out Intel’s Social Media Guidelines.

Other policies are more restrictive (e.g., you can do this, but you can’t do that. And if you do that, you may face discipline). Go back to my previous blog post, and you will some examples of those rules and restrictions.

The best policies, however, draw from both. They contain both guidelines and some rules governing conduct. The result is a social media policy aimed at building the company brand while also protecting the company’s legal interests. (This generally also means consulting with an attorney in preparing and implementing the policy).

 3. But before setting forth any rules or guidelines your policy needs to accomplish the following:

Explain that social networking activities may create unnecessary legal or business risk to the company (hence the need for a policy).

· Explain to your employees what social media is. Believe it or not, even in today’s tech age, some of them may not know.

· Explain that social networking activities may create unnecessary legal or business risk to the company (hence the need for a policy).

· Advise that the company reserves the right to monitor employee social networking activities. This is not to say that the company will automatically exercise that right. However, if employees are on notice that Big Brother may be lurking, then they are more inclined to use social media responsibly.

4. Here are some good guidelines. In terms of guidelines, I suggest incorporating the following into your social media policy: 

Emphasize that employee social networking activities should not conflict with any company policies and procedures (e.g., computer use, confidentiality)

·Emphasize that employee social networking activities should not conflict with any company policies and procedures (e.g., computer use, confidentiality)

·Explain your company’s values so that employees may hopefully add value.

·Counsel employees to take ownership of what they post online. This means steering employees away from making anonymous posts. Additionally, if employees post something that is inaccurate or in poor judgment, advise them to post a correction.

·Remind employees that they must maintain workplace productivity. There is a time and place for social media use, but it should not get in the way of job responsibilities.

·Keep it civil and use good judgment. In other words, think before you post.

5. Then again, I am a lawyer. So I’m still a stickler for the rules. And among the suggestions I give to my clients:

·Prohibit employees from using social media to harass or cyber-bully one another.

·Disparagement and defamation of the company is not tolerated.

·Employees may not make use of company logos or trademarks without prior consent from the company.

·Employees must abide by all copyright laws.

·Disclosure of proprietary or confidential information is not allowed.

·Employees who have personal blogs must use appropriate disclaimer. language when blogging about matters relating the company and/or the company’s industry. (For a good example, scroll back up to the top of this post.)

·Explain that violation of the social media policy may result in discipline up to, and including, termination of employment.

My suggestions, and those of Lee and Lauby, are certainly not the be-all and end-all to social media policy greatness. The ever-changing nature of technology suggests that at some point in the future, I may look back on this post and do another follow-up. However, one thing is certain. Now is the time to address employee use of social media.

Because social media is not going away anytime soon.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

Employers Must Now Tread Even More Carefully With Employee Requests for FMLA Leave

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

 

It would be “patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before the leave begins.”

 

These, the words of Judge Thomas Hardiman, writing for the court in Erdman v. Nationwide Insurance Co. In Erdman, the court held that any employer may not fire an employee for making a valid request for rights under the Family and Medical Leave Act.

 

Under the FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• for the birth and care of the newborn child of the employee;
• for placement with the employee of a son or daughter for adoption or foster care;
• to care for an immediate family member (spouse, child or parent) with a serious health condition; or
• to take medical leave when the employee is unable to work because of a serious health condition.

 

The facts in Erdman are fairly straightforward. The plaintiff requested that her employer afford her FMLA leave to take care of her sick daughter. Subsequent to the plaintiff making the FMLA request, and prior to the plaintiff actually going out on FMLA leave, the company terminated her employment for what it termed “behavioral problems.” Plaintiff subsequently filed suit alleging that the employer’s reason for terminating her employment was pretextual for her having requested FMLA leave. That is, the plaintiff contended that her employer had engaged in FMLA retaliation and had further violated the FMLA’s interference provision, which makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right provided by the FMLA.

 

Finding that the plaintiff had not accumulated enough hours to be eligible for FMLA leave, the district court granted summary judgment to the employer.

 

On appeal, the court determined, as an initial matter, that the plaintiff was eligible for FMLA leave. The court next reaffirmed that it had never before condoned or otherwise sanctioned employer retaliation against an employee who requests FMLA leave. Thereafter, the Erdman court reasoned that requiring an employee to first take leave as a prerequisite to establishing a claim for FMLA interference would “perversely allow a employer to limit an FMLA plaintiff’s theories of recovery by presumptively firing her.”

 

Here, because the employer fired the plaintiff before her FMLA leave commenced, the plaintiff had the right to argue that her termination was in response to her having requested FMLA leave. Accordingly, the 3^rd U.S. Circuit Court of Appeals reversed the lower court’s grant of summary judgment to the employer.

 

The lesson here is that an employer should not take any action against an eligible employee merely because she requests FMLA leave. However, it is worth noting that the Erdman court did leave for another day the issue of whether eligibility for FMLA leave is required in order to prevail on a claim for FMLA retaliation.

 

For that answer, stay tuned…

 

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

 

 

Race Claims Under 29 U.S.C. § 1981 Will Not Survive Where Earlier Title VII Claims Based on Same Facts Have Been Dismissed

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

In a case of first impression in the 3rd U.S. Circuit Court of Appeals, the court ruled in Elkadrawy v. Vanguard Group Inc. that the doctrine of res judicata precludes an employee from pursuing successive race claims where the initial race claims are dismissed in a prior action as untimely.

In Elkadrawy, the plaintiff, a Muslim American of Egyptian origin, filed a pro se complaint against his employer. The employee claimed that his employer had discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). The court dismissed the complaint as untimely, as the employee had failed to file his complaint within 90 days after receiving a notice of right to sue from the U.S. Equal Employment Opportunity Commission. Thereafter, the plaintiff filed a second complaint. In his second go-round, the plaintiff asserted race discrimination claims under both 29 U.S.C. § 1981 and the Pennsylvania Human Relations Act.

It is noteworthy that the EEOC had not previously investigated the plaintiff's Section 1981 race claims. Unlike claims brought under the Title VII, an employee is not obligated to file a charge of discrimination with the EEOC as a prerequisite to asserting race claims in federal court under Section 1981.

Still, the employer moved to dismiss both the Section 1981 and PHRA claims on the basis of the doctrine of res judicata. The employer argued that the employee's Section 1981 and PHRA claims rested upon the same facts of alleged discrimination under Title VII as set forth in his original complaint and the rules of finality treat a dismissal on statute of limitations grounds as a judgment on the merits.

The lower court agreed and the 3rd Circuit affirmed dismissal of the Section 1981 claims.

Each court reasoned that: dismissal of Title VII claims based on a statute of limitations defense operates as a final judgment on the merits; the second action involved the same parties; and the second action was based on the same cause of action.

The 3rd Circuit's decision to dismiss the Section 1981 claims was consistent with prior treatment by the 5th and 8th Circuits of the same set of successive claims.

As for the employee's claims under the PHRA, he escaped by the skin of his teeth. In a sympathetic gesture, the lower court dismissed them, without prejudice, with leave to re-file in state court. On appeal, the 3rd Circuit did not disturb the lower court's ruling.

The lesson here: It is incumbent upon employees to raise at one time all potential claims of discrimination against a single employer arising from the same set of operative facts instead of pursuing them piecemeal.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

Race Claims Under 29 U.S.C. § 1981 Will Not Survive Where Earlier Title VII Claims Based on Same Facts Have Been Dismissed

 [This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

In a case of first impression in the 3^rd U.S. Circuit Court of Appeals, the court ruled in Elkadrawy v. Vanguard Group Inc. that the doctrine of res judicata precludes an employee from pursuing successive race claims where the initial race claims are dismissed in a prior action as untimely.

 In Elkadrawy, the plaintiff, a Muslim American of Egyptian origin, filed a pro se complaint against his employer. The employee claimed that his employer had discriminated against him on the basis of his race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended (Title VII). The court dismissed the complaint as untimely, as the employee had failed to file his complaint within 90 days after receiving a notice of right to sue from the U.S. Equal Employment Opportunity Commission.

Thereafter, the plaintiff filed a second complaint. In his second go-round, the plaintiff asserted race discrimination claims under both 29 U.S.C. § 1981 and the Pennsylvania Human Relations Act.

It is noteworthy that the EEOC had not previously investigated the plaintiff’s Section 1981 race claims. Unlike claims brought under the Title VII, an employee is not obligated to file a charge of discrimination with the EEOC as a prerequisite to asserting race claims in federal court under Section 1981.

Still, the employer moved to dismiss both the Section 1981 and PHRA claims on the basis of the doctrine of res judicata. The employer argued that the employee’s Section 1981 and PHRA claims rested upon the same facts of alleged discrimination under Title VII as set forth in his original complaint and the rules of finality treat a dismissal on statute of limitations grounds as a judgment on the merits.

The lower court agreed and the 3rd Circuit affirmed dismissal of the Section 1981 claims.

Each court reasoned that: dismissal of Title VII claims based on a statute of limitations defense operates as a final judgment on the merits; the second action involved the same parties; and the second action was based on the same cause of action.

 

The 3rd Circuit’s decision to dismiss the Section 1981 claims was consistent with prior treatment by the 5th and 8th Circuits of the same set of successive claims.

As for the employee’s claims under the PHRA, he escaped by the skin of his teeth.

In a sympathetic gesture, the lower court dismissed them, without prejudice, with leave to re-file in state court. On appeal, the 3rd Circuit did not disturb the lower court’s ruling.

The lesson here: It is incumbent upon employees to raise at one time all potential claims of discrimination against a single employer arising from the same set of operative facts instead of pursuing them piecemeal.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

 

Attention Employers: Independent Contractors Can Now Pursue Race Discrimination Claims, Too

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

Local employers should expect to see an increase in race discrimination suits. That is, independent contractors are now free to pursue race discrimination claims against employers.

Until recently, only employees could bring suits against their employers for race discrimination. Employees could assert these actions under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, or PHRA, or 29 U.S.C. § 1981.

Independent contractors, on the other hand, were generally precluded from pursuing these claims. Under Title VII, an independent contractor cannot maintain a cause of action for discrimination. Meanwhile, only those independent contractors in certain regulated industries may pursue claims of discrimination under the PHRA.

However, last week, the 3rd U.S. Circuit Court of Appeals ruled in Brown v. J. Kaz, Inc. that an independent contractor has standing to pursue race discrimination claims under 29 U.S.C. § 1981.

In reaching its conclusion, the court focused on the text of Section 1981, which provides that “all persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Given that Section 1981 refers to “all persons” and embraces all contracts, the court reasoned that an independent contractor is not precluded from bringing a case of action under Section 1981 for discrimination.

So now both employees and independent contractors can pursue race discrimination claims.

Moreover, although not discussed in the court’s opinion, a Section 1981 claimant does not have to first have to file a charge of discrimination with the U.S. Equal Employment Opportunity Commission prior to filing suit in federal court. So not only will the number of discrimination claims increase, but as will the speed with which these claims get to federal court.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact him via e-mail and follow him on Twitter.

Three Decisions That Employers And Employees Cannot Afford to Ignore

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter or as in any way creating an attorney/client relationship with the author and/or Dilworth Paxson LLP.]

Over the past several weeks, the 3rd U.S. Court of Appeals and the U.S. Supreme Court have decided several cases that have drastically affected the employment landscape. In case you missed them, brief summaries and some practical tips follow.

(I would have posted about these cases sooner, but I became a first-time dad in June, so I’m cutting myself a little slack)

Ricci v. DeStefano

129 S. Ct. 1694 (2009).

Holding: Under Title VII, before an employer can engage in intentional discrimination in order to avoid or remedy an unintentional, disparate impact, the employer must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

What Ricci means for employers: For an employer who utilizes written skills tests for its employees, now is the time to review test questions to determine whether they accurately test for skills needed to perform essential job tasks. Otherwise, the employer may want to consider scrapping its written tests altogether.

What may get lost in this decision: We may not be far away from a case testing the constitutionality of Title VII disparate impact claims.

Gross v. FBL Financial Services, Inc.

129 S. Ct. 2343 (2009).

Holding: A plaintiff bringing a disparate-treatment claim under the Age Discrimination in Employment Act, or ADEA, must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age.

What Gross means for employees: It does not matter that a plaintiff has produced some evidence that age was a motivating factor in an adverse employment decision. So, without a smoking gun, good luck prevailing on an ADEA claim. You’ll need it.

What may get lost in this decision: The Supreme Court reaffirms that where a statute is silent as to the burden of persuasion in a civil action, it rests with the plaintiff.

Huston v. Procter & Gamble Paper Products Corp.

568 F.3d 100 (3d Cir. 2009)

Holding: An employee's knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer where the employee to whom a claim of sexual harassment is reported: has the authority to act on behalf of the employer to stop the harassment; and is specifically employed to report or respond to sexual harassment (e.g., a manager).

What Huston means for employers: Educate both supervisors and the rank-and-file as to which individuals are authorized to receive and deal with claims of sexual harassment. Now is also the time to revise job descriptions to specifically address who is authorized to address such claims.

What Huston means for employees: Always report claims of sexual harassment to Human Resources and anyone else identified by an employer as authorized to receive claims of sexual harassment. Any questions? Check your employee handbook and talk to HR.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

 

What the Death of Sen. Ted Kennedy Means for the Future of the Employee Free Choice Act

[This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter or as in any way creating an attorney/client relationship with the author and/or Dilworth Paxson LLP.]

A little while back I posted about how the Senate may wait until 2010 to take up the Employee Free Choice Act, a bill that would make unionization easier for employees.

Now with Sen. Edward Kennedy’s passing, there is little doubt that the Employee Free Choice Act, a bill that the senator -- a longtime ally of organized labor -- strongly supported, will have to wait until next year.

In a comment posted on the labor-friendly Web site Firedoglake.com on Aug. 24, the day before Kennedy succumbed to brain cancer, AFL-CIO Secretary-Treasurer Richard Trumka wrote that President Obama and Chief of Staff Rahm Emmanuel “have both said they [don’t] intend to bring Employee Free Choice Act up until Health Insurance Reform is done.” 

Trumka further identified Kennedy as the 60th vote required for cloture, the only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Accordingly, without Kennedy’s cloture vote, the Employee Free Choice Act cannot be voted upon in the Senate.

Concerned about losing momentum on health care reform, prior to his death, Kennedy had asked Massachusetts Gov. Deval Patrick to be prepared to name his immediate successor. However, current law mandates that a special election be held not earlier than 145 days after a Senate seat opens. Therefore, unless the law is changed, no one will fill Kennedy’s seat until January 2010 at the earliest.

So organized labor presently lacks the 60 votes in the Senate to reach cloture on the Employee Free Choice Act. In fact, notwithstanding that 59 Democrats remain in the Senate, there may be fewer cloture votes than that.

Sen. Robert C. Byrd, D-W.V., the longest serving senator in U.S. history and a supporter of the Employee Free Choice Act, is ill and presently unavailable to vote. Sen. Blanche Lincoln, D-Ark., has broken ranks and announced that she will not vote for cloture on the Employee Free Choice Act. At best, that leaves only 57 votes for cloture.

Several obstacles now stand in the way of the Employee Free Choice Act.

Eric B. Meyer is a member of the Labor and Employment Group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.

A Statute of Limitations and a Strip Club

[This posting is for informational purposes and should not be construed or interpreted as either legal advice on any matter or as in any way creating an attorney/client relationship]

What do a strip club and a statute of limitations have in common? Well, not too much. However, the title of this blog clearly caught your attention, so just keep reading.

First, the statute of limitations.

The U.S. Supreme Court has invited the Solicitor General to submit a brief in Lewis v. City of Chicago, a case that the court is considering for certiorari. The petitioners are African-American applicants for entry-level firefighter positions. They are asking the court to consider whether a plaintiff making a disparate impact claim under Title VII must file an EEOC charge of discrimination within 300 days after the announcement of an employer’s alleged discriminatory practice, or within 300 days after the employer’s use of the discriminatory practice?

Section 706(e)(1) of Title VII provides that a charge must be filed with the EEOC within 300 days after an alleged unlawful employment practice has occurred.

In Lewis, the 7th U.S. Circuit Court of Appeals held that an EEOC charge for disparate impact discrimination must be filed within 300 days of the announcement of an alleged unlawful employment practice. Two other circuits (the 3rd and 6th circuits) agree with this approach. Conversely, five circuits (the 2nd, 5th, 9th, 11th and D.C. circuits) have held that new disparate impact claims accrue each time an alleged unlawful employment practice is used to make employment decisions. The Supreme Court would have to resolve the circuit split.

And now we have the strip club.

The EEOC has brought suit in Texas on behalf of a 56-year-old woman against a strip club. The EEOC alleges, in EEOC v. AHD Houston, Inc., that the strip club discriminated against a cocktail waitress because of her age.

According to the EEOC, the waitress, who had worked for the club for 13 years, was subjected to a series of demeaning comments beginning in August 2005. Specifically, a manger often referred to the waitress as “old” and repeatedly questioned her about her age. On at least one occasion, the manager told the waitress that she was exhibiting signs of Alzheimer’s disease when she forgot something.

Another manager at the club supposedly participated in the alleged age-based harassment by frequently joking about the waitress’ age and making comments that she was experiencing menopause.

Eventually, the EEOC alleges that the club terminated the waitress’ employment without explanation.

In a comments made to the Houston Chronicle, counsel for AHD Houston told the paper that the club has strict anti-discrimination policies, has zero tolerance for violations, and intends to vigorously defend the case.

The waitress, now 59, is working for a competitor.

Eric B. Meyer is a member of the labor and employment group at Dilworth Paxson LLP. Readers can contact Meyer via e-mail and follow him on Twitter.