Labor and Employment Law News - September 2007

Labor and the Law:
News and Current Events from the LERA Section on Labor and Employment Law (LEL) © 2007

Graduate Students' Right to Union Representation
In late June, the National Labor Relations Board issued two decisions finding graduate students to be employees. This meant that the graduate students were covered by the National Labor Relations Act and have a protected right to union representation. In these two cases, the NLRB majority based its decision on a finding that the graduate students were not employed as research assistants by the universities where they studied but, rather, by private research foundations, albeit ones affiliated with universities. The two decisions are Research Found. of State Univ. of N.Y., 350 N.L.R.B. No.18 (June 29, 2007) and Research Found. of City Univ. of N.Y., 350 N.L.R.B. No. 19 (June 29, 2007).

These two cases, along with the Board's decision about graduate students in Brown Univ., 342 NLRB 483 (2004), are puzzling. The law does not appear to give the Board the power to make the sort of sweeping decision made in Brown and applied in the two new cases. In Brown, the Board stated that it was deciding, as a matter of policy, that no graduate student working as teaching assistants or research assistants could be an employee. However, decisions about who is an employee – and therefore protected under the NLRA – must be decided based on the facts in each case and not on policy. In addition, the presumption in NLRB cases is that a worker is an employee. This places the burden of proof on the person who claims a worker is not an employee. Sec. 9, which governs elections, requires the Board to issue decisions based on the hearing record. Sec. 9(b) provides for making decisions about elections in a specific case, not for a class.

The Board justified its sweeping decision in Brown by saying it was a policy decision, rather than a fact-based decision that must be made on the hearing record. However, in order to make a policy decision, the Board would need to have law that gave it the power to make that sort of decision as well as facts that supported the policy. The only facts before the Board were those in the Brown University graduate students, not about graduate students in general.

The NLRA does not give the Board the power to make a policy decision in such a matter, nor by this process. Sec. 6 of the NLRA gives the Board the power to promulgate rules and regulations but only in accord with the provisions of the Administrative Procedure Act. The APA sets out detailed notice and comment processes that must be followed for a regulation to be valid. That process was not followed in Brown.

Thus, there are many reasons that, were it possible to review the Brown decision, a court of appeals might find that the decision was not in accordance with law, in excess of statutory authority, or without observance of procedure required by law.

Employee Waiver of Family and Medical Leave Act Claims
In a recent case, an employee had signed a release in return for additional compensation upon her termination. She later sued her employer for violations of her FMLA rights. A regulation promulgated by the Department of Labor states: "Employees cannot waive, nor may employers induce employees to waive, their rights under FMLA." 29 C.F.R. § 825.220(d). The Labor Department argued that the regulation only applied to employee waivers of future rights, not to an employee's ability to waive rights concerning past violations of the Family and Medical Leave Act. However, the majority of the Fourth Circuit Court of Appeals held that the plain language of the regulation means that employees cannot waive any FMLA right, past or future, prospective or retrospective. It noted that “when the regulation was being finalized, the DOL specifically considered and rejected proposed amendments that would have permitted the interpretation now advanced by the DOL.”

The dissent argued that, not only was the wording of the regulation ambiguous but, normally, a government agency's interpretation of its own regulation is "controlling unless plainly erroneous or inconsistent with the regulation" and is entitled to deference by the courts. Therefore, the dissent said, the court should defer to the Labor Department's interpretation. Taylor v. Progress Energy Inc., Case No.04-1525 (4th Cir. July 3, 2007).

NLRA Policy and Remedies
Some workplace statutes set out specific remedies for violations. As a result, workers whose rights are violated are limited to those remedies. The National Labor Relations Act takes a different approach. It requires no specific remedies. Rather, what the NLRA requires is that remedies must promote the NLRA's policies. Those policies include “restoring equality of bargaining power between employers and employees”, “encouraging the practice and procedure of collective bargaining”, “protecting the exercise by workers of full freedom of association, self-organization, and designation of representative of their own choosing, for the purpose of negotiating the terms and conditions of their employment”, and “other mutual aid or protection”.

This, of course, is not how NLRA violations have been enforced. The Board and courts have developed a set of standard remedies that are applied without considering the legal obligation to ensure they promote the NLRA's policies. The result has been complaints that the NLRA's remedies are ineffective to protect bargaining or the right to organize.

A recent NLRB case shows this dynamic. The employer was found to have violated its obligation to bargain with the union that represented its workers over the effects of the decision to move the workers into a larger unit of employees represented by a different union. Rather than giving the union notice of the merger, the employer hid this information from the employees' representative for five months, until the merger was a fait accompli. The employer hid the merger because it saw as a jeopardy “to its plan that ‘[the union] may attempt to retain representation rights' by taking action before the NLRB. Accordingly, the Respondent took all necessary steps to conceal its plan and then to delay bargaining.”

The Board split over the appropriate remedy. The majority noted that the Board has a “standard remedy” for this sort of case – an order to bargain over the effects of its decision. However, the majority said, "under the facts here, no purpose would be served by ordering bargaining over the effects. . . . We recognize that the Board is not the arbiter of the substantive terms of bargaining proposals. However, this is not to say that, in devising a remedy in this case, we are required to ignore CWA's bargaining achievements for those who were the victims of the earlier refusal to bargain with Local 21." AG Commc'n Sys. Corp., 350 N.L.R.B. No. 15 (June 29, 2007).

What this analysis misses is the obligation to ensure that a remedy promote the NLRA's policies. In this case, they required that the remedy promote the practice and procedure of bargaining, as well as the right to be represented by a representative of the employees' own choosing. The majority also failed to consider the impact such a decision is likely to have on employer compliance with the obligation to bargain in future cases.

Web Links

Lee S Friedman and Linda Forst, The Impact of OSHA Recordkeeping Regulation Changes on Occupational Injury and Illness Trends in the US: A Time-series Analysis, Occupational and Environmental Medicine

UCLA School of Law, Williams Institute on Sexual Orientation Law and Public Policy, Bias in the Workplace: Consistent Evidence of Sexual Orientation and Gender Identity Discrimination

Traci Galinsky, et alia, Supplementary Breaks and Stretching Exercises for Data Entry Operators: A Follow-up Field Study , 50 American Journal of Industrial Medicine 519 (May 18, 2007)

EBRI Issue Brief: Retirement Income Adequacy After PPA and FAS 158: Part One - Plan Sponsors' Reactions

Centers for Disease Control and Prevention, Advanced Pneumoconiosis Among Working Underground Coal Miners – Eastern Kentucky and Southwestern Virginia, 2006

Families USA, Whose Advantage? Billions in Windfall Payments Go to Private Medicare Plans

Mine Safety & Health Administration on Mine Safety

Government Accountability Office, Defined Benefit Pensions: Conflicts of Interest Involving High Risk or Terminated Plans Post Enforcement Challenges (GAO-07-703)

Integrated Benefits Institute (IBI), A Broader Reach for Pharmacy Plan Design - The Disability Effects of Cost Shifting

Partnership for Public Service, Where the Jobs Are: Mission Critical Opportunities for America

Cancer and Careers

NIOSH Alert: Request for Assistance in Preventing Deaths of Farm Workers in Manure Pits

NIOSH Update: NIOSH Warns, Manure Pits Continue to Claim Lives

Swiss Federal Office for the Environment and Federal Office of Public Health, Synthetic Nanomaterials: Risk Assessment and Risk Management, Basis Report for Action Plan

Safety & Health Assessment & Research for Prevention (SHARP), Trucking Initiative

New Jersey Department of Health and Senior Services, Workplace Violence and Prevention in New Jersey Hospital Emergency Departments

Recent Labor and Employment Law Articles

Julie Ashby, Michelle Ryan, & Alexander Haslam, Legal Work and the Glass Cliff: Evidence That Women Are Preferentially Selected to Lead Problematic Cases, 13 Wm. & Mary J. Women & L. 775 (2007)

Megan Bannigan, Note: Judgment Day for Public Entity Punitive Damages? Reexamining the Law and Policy and Awarding Punitive Damages Against New Jersey Public Entities. 38 Rutgers L.J. 191 (2006)

Jayne Barnard, More Women on Corporate Boards? Not So Fast, 13 Wm. & Mary J. Women & L. 703 (2007)

Peter Bazos, Note: Suspension of Davis-Bacon after Hurricane Katrina: the Fate of Prevailing Wages During a "National Emergency", 36 Pub. Cont. L.J. 405 (2007)

Linda Berger, Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation, 58 Mercer L. Rev. 949 (2007)

Shana Burleson & David Clouston, Light Dimmed by Johnson – The Enforceability of Covenants Not to Compete under Texas Law, 59 Baylor L. Rev. 287 (2007)

Eduardo Capulong, Which Side Are You On? Unionization in Social Service Nonprofits, 9 N.Y. City L. Rev. 373 (2006)

Davon Collins, Note: Toward a More Federalist Employment-Based Immigration System, 25 Yale L. & Pol'y Rev. 349 (2007)

Christopher Drahozal, Is Arbitration Lawless? 40 Loy. L.A. L. Rev. 187 (2006)

John Edwards, Restoring the American Dream: Fighting Poverty and Strengthening the Middle Class, 10 J. Gender Race & Just. 383 (2007)

Michele Gilman, Fighting Poverty with Faith: Reflections on Ten Years of Charitable Choice, 10 J. Gender Race & Just. 395 (2007)

James Fishman, The Nonprofit Sector: Myths and Realities, 9 N.Y. City L. Rev. 303 (2006)

Glenn George, Theory and Practice: Employer Liability for Sexual Harassment, 13 Wm. & Mary J. Women & L. 727 (2007)

Ruth Bader Ginsburg, Remarks on Women's Progress at the Bar and the Bench for Presentation at the American Sociological Association Annual Meeting, 30 Harv. J.L.& Gender 1 (2007)

Michael Goldberg, Against Acting 'Humanely', 58 Mercer L. Rev. 899 (2007)

Julie Goldscheid, Supporting Accountability: Assessing the Costs of Regulation, 9 N.Y. City L. Rev. 321 (2006)

Natalie Gomez-Velez, Proactive Procurement: Using New York City's Procurement Rules to Foster Positive Human Services Policies and Serve Public Goals, 9 N.Y. City L. Rev. 331 (2006)

William Gould, Kissing Cousins? The Federal Arbitration Act and Modern Labor Arbitration. 55 Emory L.J. 609 (2006)

Matthew Hauber, Comment. Preconceived Notions: "Regarded As" Disabled Employees and the Right to Reasonable Accommodations under Title I of the Americans with Disabilities Act, 13 Widener L. Rev. 199 (2006)

Dana Hollywood, Creating a True Army of One: Four Proposals to Combat Sexual Harassment in Today's Army, 30 Harv. J.L. & Gender 151 (2007)

David Johnson & Peyton Smith, The First Step in Nonsubscriber Employee Injury Suits Is Defining the Scope of the Employers' Duty – It Affects Everything, 59 Baylor L. Rev. 381 (2007)

Charles Knapp, Opting out or Copping Out? An Argument for Strict Scrutiny of Individual Contracts, 40 Loy. L.a. L. Rev. 95 (2006)

Dean Krishna, Comment. Dna Testing for Eddy Curry? Creating a New Constitutional Protection, 9 U. Pa. J. Const. L. 1105 (2007)

Jeffrey Lindequist, Note: The Black Lung Benefits Act – Sixteen Tons, What Do You Get? How Do You Determine a Miner Has Had a Materials Change in Condition to Allow a Subsequent Claim for Benefits? 29 W. New Eng. L. Rev. 497 (2007)

Mariejoy Mendoza, Note: Making Friends: Sexual Harassment in the Workplace, Free Speech, 40 UC Davis L. Rev. 1963 (2007)

Laura Padilla, A Gendered Update on Women Law Deans: Who, Where, Why, and Why Not? 15 Am. U. J. Gender Soc. Pol'y & L. 443 (2007)

Lisa Pruitt, Missing the Mark: Welfare Reform and Rural Poverty, 10 J. Gender Race & Just. 439 (2007).

Deborah Rhode, Social Research and Social Change: Meeting the Challenge of Gender Inequality and Sexual Abuse, 30 Harv. J.L. & Gender 11 (2007)

Charles Rhodes, Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism, 15 Wm. & Mary Bill Rts. J. 1173 (2007)

David Ritchie, Who Is on the Outside Looking In, and What Do They See? Metaphors of Exclusion in Legal Education. 58 Mercer L. Rev. 991 -1019 (2007)

Emily Rockwood, Note: Privatizing Tax Collection: a Case Study in the Outsourcing Debate, 36 Pub. Cont. L.J. 423 (2007)

Naomi Schoenbaum, It's Time That You Know: the Shortcomings of Ignorance as Fairness in Employment Law and the Need for an "Information-Shifting" Model, 30 Harv. J.L. & Gender 99 (2007)

Anik Shah, Comment: Supplementing State Workers' Compensation Laws with Causes of Action under State Common Law Regimes for Employee Third-Party Sexual Harassment Suits Against Employers, 15 Am. U. J. Gender Soc. Pol'y & L. 577 (2007)

Michael Seigel & Kathi Miner-Rubino, Some Preliminary Statistical, Qualitative, and Anecdotal Findings of an Empirical Study of Collegiality among Law Professors, 13 Widener L. Rev. 1 (2006)

Sandra Sperino, Recreating Diversity in Employment Law by Debunking the Myth of the McDonnell Douglas Monolith, 44 Hous. L. Rev. 349 (2007)

Lior Strahilevitz, Wealth Without Markets? a review of Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom, 116 Yale L.J. 1472 (2007)

Sope Williams, The Debarment of Corrupt Contractors from World Bank-Financed Contracts, 36 Pub. Cont. L.J. 277 (2007)

Symposium: Current Developments in Gender and the Workplace, 13 Wm. & Mary J. Women & L. 703 (2007)

Symposium: High-Poverty Schooling in America: Lessons in Second-Class Citizenship, 85 N.C. L. Rev. 1279 (2007)

Symposium: One Act, Ten Years, and Thousands of Families: Welfare Reform in Contemporary America, 10 J. Gender Race & Just. 383 (2007)

Symposium: Who Profits from Nonprofits? 9 N.Y. City L. Rev. 281 (2006)

David Torrey, Compromise Settlements under State Workers' Compensation Acts: Law, Policy, Practice, and Ten Years of the Pennsylvania Experience, 16 Widener L.J. 199 (2007)

Jaqueline Wood, Note: Government Contractor Standards of Ethical Conduct: The Need for a More Detailed Regulatory Scheme, 36 Pub. Cont. L.J. 437 (2007)

Workers' Compensation, 16 Widener L.J. 747 (2007)