Labor and Employment Law News - June 2011

 The full text of many cases is now available free on-line. Where that is the case, links are provided

Public Employees and Protected Free Speech        

     Employee whistleblower protections differ depending on whether the employee works for a federal, state, or local government or a private employer.  Whistleblower cases raise issues as to why or when the employee is protected. A recent case from the Indiana Supreme Court involving a fire department employee whistleblower provides an interesting discussion of these issues. Love v. Rehfus, Case No.30S01-1004-CV-162 (Ind.  Apr. 21, 2011)
http://www.in.gov/judiciary/opinions/pdf/04211102fsj.pdf

     In this case, a township fire chief fired a part-time firefighter for sending an email from his home computer urging people involved with a local youth sports team to vote for a specific candidate for township trustee. The email discussed several controversial issues, including how township money was spent and the purchase and use of fire department vehicles. In addition, the email made negative statements about the fire chief and career firefighters. The township trustees had the power to appoint the fire chief.

     The fire chief said he fired the firefighter because the email contained false statements and the plaintiff knew they were false. The court found the email to be speech that was protected under the First Amendment.

     In the case of public employee speech rights, employee and employers each wear two hats. A government employee must obey orders and not take actions that would harm the employer. However, public employees also retain the rights and protections that apply to citizens. In addition, society has a strong interest in hearing information from public employees, because they are likely to be well-informed ideas on issues of public concern.

     When the government acts as an employer, it has a strong management interest in ensuring that government operations are effective and efficient, so it can limit speech rights to achieve those goals. But a government employer is also bound by constitutional obligations owed to citizens, including speech rights.

     Deciding whether a whistleblower is protected requires balancing all these rights and interests. For example, in this case the court critiqued the government’s claim that the plaintiff’s speech harmed the mission of the government agency. The court said, “The defendants contend that when a political message is intended to and does harm the political standing of a government official, such harm constitutes disruption under Pickering. But that would mean that the First Amendment’s protection for political speech decreases when the political efficacy of the speech increases. The fact that speech on a matter of public concern brings about its intended effect cannot be considered as harm or disruption.”

     The case provides a good overview of US Supreme Court cases in this area.

     For those who are interested in this area of law, a second case involving similar legal issues was recently issued by the Ninth Circuit Court of Appeals: Bardzik v. County of Orange, Case No.09-55103 (9^th Cir. Mar. 28, 2011) http://www.ca9.uscourts.gov/datastore/opinions/2011/03/28/09-55103.pdf

The Essential Functions of a Job Under the Americans with Disabilities Act

     A recent decision from the District Court of Colorado includes a number of common Americans with Disabilities Act issues and includes interesting discussion of the evidence presented by the employer and the EEOC. The issues include identifying essential functions of a job, an employer’s obligations to provide accommodations to an employee who was profoundly deaf, and whether the plaintiff was subjected to a hostile environment and illegally fired. The judge granted summary judgement for the employer, holding that the Equal Employment Opportunity Commission had failed to prove that the employee was able to perform the job’s essential functions. EEOC v. Picture People, Inc., Case No.1:09-cv-02315 (D. Colo. May 9, 2011). http://hr.cch.com/EMPNews/eeocpicture.pdf

Disabilities Discrimination and Essential Functions of a Position

     Among the issues in another recent case disability discrimination, this one decided under California’s Fair, Employment and Housing Act (FEHA), is identifying the essential functions of a police officer’s job. Cuiellette v. Los Angeles, Case No.B224303 (Cal. Ct. App. Apr. 22, 2011). http://www.courtinfo.ca.gov/opinions/documents/B224303.PDF

NLRB Elections and Objectionable Conduct

     NLRB elections are supposed to take place under “laboratory conditions” in order to discover the true wishes of employees as to union representation. In a recent case, the Board found that certain employer actions were likely to have affected the results of the election. As a result, the election was set aside and a re-run election was ordered. Rivers Casino, 356 NLRB No.142 (April 26, 2011) http://mynlrb.nlrb.gov/link/document.aspx/09031d458047b8f7

     The facts of this case are ones commonly found to be grounds for overturning an election, and some can also be unfair labor practices.  First, the employer imposed and then enforced a new rule that prohibited an employee from distributing union T-shirts in a part of a parking garage where the employees regularly parked and which was not a work area.  The Board noted that off-duty employees have a right to distribute union materials in nonwork areas unless there are special business reasons.

     Second, a supervisor stayed in the area where the T-shirts had been distributed and listened to the employees’ conversation concerning a union meeting.  It is not objectionable activity to see public union activity, but it can become coercive surveillance based on “‘the duration of the observation, the employer's distance from its employees while observing them, and whether the employer engaged in other coercive conduct during its observation.” In this case, the employer observations involved a high-level manager who had just ordered an employee to stop distributing union t-shirts; the observations were not routine; and they were in a non-work area.
    
     The decision also discusses other conduct found to be objectionable, including prohibiting wearing union buttons and granting time off on election day to employees the employer wanted to ensure voted. In addition, granting the extra time off violated the parties’ agreement on how employees would be released to vote.

     The Board concluded that the employer’s objectionable conduct was sufficiently serious to warrant setting aside the results of the election, considering the number of employees affected by the conduct and the closeness of the election – 35 votes for union representation and 38 against.    

Union Dues, Dues Checkoff, and Arbitration
 
     This case began with the union’s filing a grievance against an employer that had stopped deducting dues after the parties’ collective bargaining agreement expired. When the parties were unable to negotiate a settlement of the issue, the union submitted the grievance to arbitration. The employer refused to arbitrate the grievance, so the union filed a law suit to compel arbitration. Essentially this was a breach of contract case, with the collective bargaining agreement as the contract. The issues to be decided were: (1) Did the contract require the parties to arbitrate this issue and (2) Did the employer breach the contract by refusing to collect and forward dues.  Newspaper Guild/CWA of Albany,  v. Hearst Corporation, Case No.10-2402 (2d Cir. May 17, 2011).
http://www.ca2.uscourts.gov/decisions/isysquery/c3a0a3f6-0f7f-4c11-91da-b0f3401407ca/5/doc/10-2402_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c3a0a3f6-0f7f-4c11-91da-b0f3401407ca/5/hilite/

     The court first found that the dues issues were arbitrable, because the parties’ collective bargaining agreement said that all disputes over the interpretation or application of the agreement could be submitted to final and binding arbitration.

     The court then found that the employer had violated the collective bargaining agreement by refusing to deduct and forward the dues, because (1) the CBA required the employer to forward dues that were deducted based on an employee’s written, voluntary, signed agreement to the union, (2) the CBA also said that an employee’s agreement to have the dues deducted and forwarded to the union continued until the employee revoked it, (3) nothing in the CBA said that the employer’s obligations expired when the CBA expired, and (4)  the CBA did not give the employer the unilateral right to revoke the dues assignment nor to stop sending dues to the union after the CBA’s expiration. As a result, the employer was required to arbitrate the grievance over its refusal to deduct and forward dues.

When Employers Can Be Directly Liable for Workplace Injuries

     The traditional workers compensation bargain is that employees are assured compensation for accidental workplace injuries, and employers are freed from high litigation and liability costs of injured employees’ tort cases. However, employers can lose that immunity from lawsuits if the employee’s injury is caused by their employer’s intentional acts, that is, if the injury is not accidental.

     A recent West Virginia case involves an employee who claimed his workplace injury was caused by failuing to train him to operate equipment and by requiring him to use defective equipment that had injured another employee by pinning her against a wall. Skaggs v. Kroger Company, Case No.2:10-0768 (S.D. W.Va. Apr. 21, 2011) http://scholar.google.com/scholar_case?case=13141732488184641252&hl=en&as_sdt=2&as_vis=1&oi=scholarr

     The court’s decision is based on the employer’s motion for summary judgment. To win the motion, the employer must show that there are no disputed facts and that, as a matter of law, it is entitled to judgment on those facts. The decision discusses situations in which employers lose their immunity from lawsuits and finds that the employer failed to prove that it was entitled to summary judgment in its favor.

Fear of Heights As a Disability Protected by the Americans with Disabilities Act

     A recent Americans with Disabilities Act case required applying the law to a state highway maintenance worker who was afraid of heights and who was assigned to a bridge crew. Miller, the employee, claimed that his employer had violated the Americans with Disabilities Act by discriminating against him based on his disability and then firing him for requesting a reasonable accommodation – not to work at heights above 20 to 25 feet.  The court’s decision found that “Miller has presented evidence from which a reasonable jury could conclude that IDOT regarded him as disabled because of his fear of heights. Miller has also presented evidence that would allow a reasonable jury to find that he could perform the essential functions of his job with reasonable accommodations.” For these and other reasons, the court denied the employer’s motion for summary judgment and allowing the case to proceed to trial.  Miller v. Illinois Dep't of Transportation,Case No.09-3143 (7th Cir. May 10, 2011).
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=rss_sho&shofile=09-3143_002.pdf

     Phobias present issues that are both similar to and different from physical disabilities in how they are recognized and accommodated. This decision presents a clear analysis of the facts and issues raised in disability cases in general, as well as in this case. For those of us who will be seeing highway and bridge maintenance and construction in progress, the case provides a window into the work these employees do.

                                                                Web Links

Understanding the Affordable Care Act http://www.healthcare.gov/law/introduction/index.html

Senate Committee on Commerce, Science and Transportation, Consumer Health Insurance Savings Under the Medical Loss Ratio Law http://commerce.senate.gov/public/?a=Files.Serve&File_id=98f51e42-e9ef-441a-a5e3-6bdac44d6a27

Exhibit 1 http://commerce.senate.gov/public/?a=Files.Serve&File_id=65830bfb-f737-4d0d-88f1-7988c130c6fc

Exhibit 2 http://commerce.senate.gov/public/?a=Files.Serve&File_id=06022a43-937e-4fa8-9ffa-77b5f4da46cc

West Virginia Governor’s Independent Investigation Panel, Upper Big Branch - The April 5, 2010 Explosion: A Failure of Basic Coal Mine Safety Practices (Report to the Governor of West Virginia)
http://www.nttc.edu/programs&projects/minesafety/disasterinvestigations/upperbigbranch/UpperBigBranchReport.pdf

Office of the NLRB General Counsel, Memorandum GC 11-13 Guideline Memorandum Concerning Parties’ Obligation to Provide Information Related to Assertions Made in Collective Bargaining May 17, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d458048c33d

Office of the NLRB General Counsel, Division of Operations-Management, MEMORANDUM OM 11-58 Submission to Advice of Information Cases in Relocation Situations   May 10, 2011 http://mynlrb.nlrb.gov/link/document.aspx/09031d4580479616

U.S. Department of Labor Timesheet App http://www.dol.gov/whd/
http://www.dol.gov/whd/Hightlights/archived.htm#May9_2011
http://itunes.apple.com/us/app/dol-timesheet/id433638193?mt=8

Hilda L. Solis, Secretary of Labor, Report to Congress - Annual Report on Self-Insured Group Health Plans March 2011 http://www.dol.gov/ebsa/pdf/ACAReportToCongress032811.pdf

U.S. Bureau of Labor Statistics, Mass Layoffs —April 2011 , May 20, 2011 http://www.bls.gov/news.release/pdf/mmls.pdf

United States Senate Committee on Finance, Perspectives on Deficit Reduction: Social Security,  May 10, 2011 http://finance.senate.gov/hearings/hearing/?id=2da651b7-5056-a032-5297-ceec678e6360

United States Senate Committee on Finance, Hearing on Financing 21st Century Infrastructure, May 17, 2011 http://finance.senate.gov/hearings/hearing/?id=979e4eda-5056-a032-5280-d3f77c580ec4

President's Council on Jobs and Competitiveness, First Meeting of the President’s Council on Jobs and Competitiveness [ video of meeting, transcript, blog post] http://www.whitehouse.gov/administration/advisory-boards/jobs-council/meetings

NLRB Acting General Counsel Lafe Solomon releases statement on Boeing complaint, May 6, 2011 http://www.nlrb.gov/news/acting-general-counsel-lafe-solomon-releases-statement-boeing-complaint

NLRB initiates litigation against the state of Arizona on amendment limiting method for choosing union representation, May 6, 2011 http://www.nlrb.gov/news/nlrb-initiates-litigation-against-state-arizona-amendment-limiting-method-choosing-union-repres
http://www.nlrb.gov/news-media/backgrounders/state-amendments-and-preemption

Complaint in National Labor  Relations Board v. State of Arizona
http://www.nlrb.gov/sites/leraweb.org/files/documents/234/azcomplaint.pdf

Excluded Worker Congress  http://www.excludedworkerscongress.org/

U.S. Department of Labor U.S. Bureau of Labor Statistics, Issues in Labor Statistics: How long before the unemployed find jobs or quit looking? Summary 11-1 / May 2011 http://www.bls.gov/opub/ils/pdf/opbils89.pdf

America 2050, High-Speed Rail in America http://www.america2050.org/2011/01/high-speed-rail-in-america.html

Government Accountability Office, OMB Service Contracts Inventory Guidance and Implementation  GAO-11-538R, May 27, 2011 http://www.gao.gov/new.items/d11538r.pdf

Government Accountability Office, Job Access and Reverse Commute Program: Progress Made in Using Funds and Stakeholder Views on Proposed Program Changes   GAO-11-518, May 26, 2011

Government Accountability Office, Military Training: Actions Needed to Improve Planning and Coordination of Army and Marine Corps Language and Culture Training  GAO-11-456, May 26, 2011

Government Accountability Office, Economic Development: Efficiency and Effectiveness of Fragmented Programs Are Unclear   GAO-11-651T, May 25, 2011 http://www.gao.gov/new.items/d11651t.pdf

Government Accountability Office, Recovery Act: Thousands of Recovery Act Contract and Grant Recipients Owe Hundreds of Millions in Federal Taxes   GAO-11-686T, May 24, 2011 http://www.gao.gov/new.items/d11686t.pdf

Government Accountability Office, Recovery Act: Thousands of Recovery Act Contract and Grant Recipients Owe Hundreds of Millions in Federal Taxes   GAO-11-485, Apr 28, 2011 http://www.gao.gov/new.items/d11485.pdf

Government Accountability Office, Efficiency and Effectiveness of Fragmented Economic Development Programs Are Unclear  GAO-11-477R, May 19, 2011 http://www.gao.gov/new.items/d11477r.pdf

Government Accountability Office, Federal Recovery Coordination Program: Enrollment, Staffing, and Care Coordination Pose Significant Challenges  GAO-11-572T, May 13, 2011 http://www.gao.gov/new.items/d11572t.pdf

Government Accountability Office, Federal Workers' Compensation: Issues Associated With Changing Benefits for Older Beneficiaries   GAO-11-655T, May 12, 2011  http://www.gao.gov/new.items/d11655t.pdf

Government Accountability Office, Employment and Training Programs: Providing Information on Co-Locating Services and Consolidating Administrative Structures   GAO-11-645T, May 11, 2011 http://www.gao.gov/new.items/d11645t.pdf

Government Accountability Office, Hospital Emergency Departments: Health Center Strategies That May Help Reduce Their Use  GAO-11-643T, May 11, 2011 http://www.gao.gov/new.items/d11643t.pdf

Government Accountability Office, Hospital Emergency Departments: Health Center Strategies That May Help Reduce Their Use  GAO-11-414R, Apr 11, 2011 http://www.gao.gov/new.items/d11414r.pdf

Government Accountability Office, Employment and Training Programs: Providing Information on Colocating Services and Consolidating Administrative Structures   GAO-11-645T, May 11, 2011 http://www.gao.gov/new.items/d11645t.pdf  

Government Accountability Office, Hospital Emergency Departments: Health Center Strategies That May Help Reduce Their Use   GAO-11-414R, Apr 11, 2011 http://www.gao.gov/new.items/d11414r.pdf

Government Accountability Office, Hospital Emergency Departments: Health Center Strategies That May Help Reduce Their Use   GAO-11-643T, May 11, 2011 h http://www.gao.gov/new.items/d11643t.pdf

Government Accountability Office, Information Technology: Department of Veterans Affairs Faces Ongoing Management Challenges   GAO-11-663T, May 11, 2011 http://www.gao.gov/new.items/d11663t.pdf

Government Accountability Office, TARP: Treasury's Exit from GM and Chrysler Highlights Competing Goals, and Results of Support to Auto Communities Are Unclear   GAO-11-471, May 10, 2011 http://www.gao.gov/new.items/d11471.pdf

Government Accountability Office, Transportation Worker Identification Credential: Internal Control Weaknesses Need to Be Corrected to Help Achieve Security Objectives  GAO-11-657, May 10, 2011 http://www.gao.gov/new.items/d11657.pdf

Government Accountability Office, Transportation Worker Identification Credential: Internal Control Weaknesses Need to Be Corrected to Help Achieve Security Objectives  GAO-11-648T, May 10, 2011 http://www.gao.gov/new.items/d11648t.pdf

Government Accountability Office, Nursing Homes: More Reliable Data and Consistent Guidance Would Improve CMS Oversight of State Complaint Investigations   GAO-11-280, Apr 7, 2011  http://www.gao.gov/new.items/d11280.pdf

Government Accountability Office, Nursing Home Quality: Implementation of the Quality Indicator Survey  GAO-11-403R, Apr 6, 2011 http://www.gao.gov/new.items/d11403r.pdf

Workplace Flexibility 2010 & Institute for Workplace Innovation, Flexible Workplace Solutions for Low-Wage Hourly Workers May 19, 2011 http://workplaceflexibility2010.org/index.php/whats_new/flexible_workplace_solutions_for_low-wage_hourly_workers

Partnership for Public Service, A Critical Role at a Critical Time: A Survey of Performance Improvement Officers http://ourpublicservice.org/OPS/publications/viewcontentdetails.php?id=160

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