Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

Drawing a distinction between picketing and striking, the 2d U.S. Circuit Court of Appeals has held that a New York health clinic unlawfully fired five employees for joining a picket line, even though the picketing itself was an unfair labor practice by the union. Civil Serv. Employees Assn. Local 1000 v. NLRB, 2d Circ., No. 07-5041, June 19, 2009.

The American Federation of State, County and Municipal Employees (AFSCME) represents correctional officers at a state facility in Albany where Correctional Medical Services (CMS) operated a health clinic. Local 1000 of that union attempted to organize the employees of the clinic, asking CMS to recognize the union as a bargaining agent for all of the clinic’s employees other than physicians, supervisors, and clerical workers. When CMS refused that request, the union established a picket line in which 20 individuals peacefully picketed in front of the clinic’s main entrance for less than an hour, without blocking access to the facility. Those 20 individual include five off-duty, non-union CMS employees.

Section 8(g) of the National Labor Relations Act (NLRA) includes a provision that requires a labor organization to provide at least 10 days advance notice before engaging in “any strike, picketing, or other concerted refusal to work” at a healthcare entity. In this case, no such notice was given, and the five CMS employees received a letter on the following day informing them that the picketing had occurred without the required 10-day notice and, therefore, was illegal. Shortly after receiving those letters, the five employees were fired, based upon CMS’ reading of the NLRA.

CMS filed a charge against the union under Section 8(g); acting on that charge, the NLRB director issued a Section 8(g) complaint against the union. Local 1000 settled the complaint against it, but filed a charge against CMS, alleging that the employees’ firings were illegal. In May 2007, the NLRB ruled that the clinic’s discharge of employees did not violate the NLRA. Local 1000 petitioned for review of that decision. On appeal, the Second Circuit ruled that the NLRB improperly construed Section 8 of the NLRA related to healthcare workers.

Under Section 8(a) of the NLRA, an employer commits an unfair labor practice if it interferes with an employee’s right to organize. Picketing is generally considered to be a protected activity under the Act. However, in the 1974 amendments to the NLRA, Congress modified Section 8 of the Act, adding a restriction - Section 8(g), mentioned above - related to picketing or striking against a healthcare entity, and requiring a 10-day notice of such activity by “labor organizations.” That particular sub-section does not state that an individual employee who participates in such activity commits a violation. Under modified Section 8(d), however, an employee who engages in “any strike” at the healthcare entity without the required notice is no longer an “employee” under the NLRA, losing all protection under the Act. This is the language cited by CMS to support its discharge of the five picketers.

However, the Second Circuit pointed out that while Section 8(d) provides that an employee who engages in a strike without proper notice “shall lose his status as an employee of the employer engaged in the particular labor dispute,” Section 8(d) does not include a comparable provision about employees who participate in picketing conducted by the union in violation of those notice requirements. Therefore, while a “labor organization” is subject to sanctions for either striking or picketing without observing the appropriate notice under Section 8, the Act specifically sanctions only those individuals who participate in a strike against a healthcare entity, and not in picketing of that same employer (unless those individuals are actually “agents” of the union under a separate Section of the NLRA).

This case is one of which healthcare entities must be aware, especially in light of current efforts toward unionization of healthcare employees. However, we may not have seen the last of this issue. The Second Circuit points out in its opinion that this circumstance involved only “peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic,” but states that it could “conceive of certain circumstances where protected picketing could cause disruption in the ability of a health care facility to deliver health care.” While the Court states that its opinion in this case is based upon the clear wording of the statute, it suggests that “[i]f the balance is imperfect, the Board should petition Congress to fix it.”
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The basis of an employer’s liability for a claim of hostile work environment under Title VII depends upon whether the harasser is the complainant’s supervisor or merely a co-worker. When a hostile work environment is created by a co-worker, the employer is liable only if the employer failed to provide an avenue for reporting the harassment, or if the employer knew or should have known of the harassment but failed to take prompt and appropriate remedial action. Under Title VII, an employer “knew or should have known” about workplace harassment if “management level employees had actual or constructive knowledge about the existence of a sexually hostile environment.” Therefore, once a management level employee has enough information to raise the probability of sexual harassment in the mind of a reasonable employer, the employer is deemed to be on constructive notice of that harassment.

Recently, the 3d U.S. Circuit Court of Appeals affirmed summary judgment in favor of an employer, holding that the individual team leaders who were aware of certain harassing behavior were not the “management level personnel” referred to in Title VII and, therefore, that the employer could not be held liable for the claims of harassment made by the plaintiff. Huston v. Proctor & Gamble Paper Products Corp., 3d Circ., No. 07-2799, June 30, 2009.

Priscilla Huston was employed by Proctor & Gamble’s Mehoopany, Pennsylvania plant for more than 10 years, working as a technician on teams that operated large paper manufacturing machines. In 2004, Huston allegedly heard about a number of instances in which certain of her male team members exposed themselves to other male employees. She reported those specific incidents only to her team’s “process coach” (Romanchick) and a “machine leader” (Traver), but not to senior management. Huston alleges that she subsequently witnessed two similar incidents herself. She reported those two incidents to a senior-level manager and a human resource manager. An investigation was begun on the day that the incidents were reported. Discipline ultimately was imposed to all team members, including Huston, after it was discovered that the entire team used vulgar language at work – a practice that the company had been working to eliminate. Although Huston’s disciplinary history was such that she could have been terminated for this infraction, she was simply asked to be “mindful of her language” at work.

In the fall of 2004, P&G identified a costly problem occurring at the plant, and was able to trace the problem to a lack of care on the part of the technicians, including Huston. At that point, all technicians were informed that they risked termination if caught fabricating data for machine data logs. In spite of this warning, Huston admittedly falsified certain data into the logs, and was terminated from employment. She then filed a complaint asserting a sexually hostile environment, claiming that Romanchick and Travers were “managers” who put the company on notice of the plant’s hostile environment, and that the company should have acted sooner with respect to the hostile environment.

The Third Circuit affirmed a lower court’s dismissal of the case, finding that Romanchick and Travers did not qualify as management-level employees for purposes of Title VII and, therefore, that the company was not on notice of the hostile environment until Huston reported it to senior management. Unlike salaried managers, Romanchick and Travers were paid on an hourly basis, and had no actual authority to hire, fire, or discipline others. Instead, they performed essentially the same functions as the remaining team members, with certain additional oversight functions. According to the Court, an employee’s knowledge of sexual harassment may be imputed to the employer only when (1) that employee is sufficiently senior in the employer’s governing hierarchy so that such knowledge is important to that person’s general managerial duties; or (2) the employee is specifically employed to report or respond to sexual harassment.

This case provides a bright line definition of “managerial employee” with respect to Title VII’s use of that term by requiring knowledge of a hostile environment to reach an employee in the “governing body” of the company, as opposed to a mere “supervisory employee in the labor force.” According to the Court, “[a]lthough an employer has a duty to be reasonably diligent in attempting to discover co-worker harassment, an employer is not expected to know every instance of harassment that may occur between co-workers.” While this should not be read as permission to ignore or minimize instances of harassment that come to light, it allows employers to fully understand their duty under Title VII, and to respond effectively when allegations of sexual harassment are properly raised.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court “failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.” Weiss v. JPMorgan Chase & Company, 2d Circ., No. 08-0801, June 5, 2009.

David Weiss alleged that he was terminated from his position at JPMorgan Chase & Company in violation of the Age Discrimination in Employment Act (ADEA) after he was replaced, at age 56, by an individual 16 years his junior. The parties agreed that Weiss presented a prima facie case of discrimination, and that JPMorgan introduced evidence that it had a legitimate non-discriminatory reason for firing Weiss. At the final stage of the now-familiar McDonnell-Douglas analysis, Weiss was required to satisfy the ultimate burden of proving that JPMorgan’s proffered reasons actually were a pretext for age discrimination. The district court reviewed the evidence, and found in favor of JPMorgan. On appeal, the Second Circuit reversed that decision, and held that based upon the available facts – when viewed in a light most favorable to Weiss – a jury may have been able to infer pretext regarding JPMorgan’s reasons for Weiss’ termination. The Second Circuit addressed each of the arguments asserted by Weiss in response to the reasons proffered by JPMorgan, and found each to have created such an inference.

JPMorgan’s asserted reasons for Weiss’ termination centered around complaints by Weiss’ sales team regarding his leadership style, and included the subjective determination (made by a supervisor who only had known Weiss for four months) that “the team had lost confidence in Weiss.” Weiss argued that his team was dissatisfied with their bonuses, over which he had little or no control; that the defection of his top sales person was not due to any action on Weiss’ part, but on JPMorgan’s refusal to match an offer to that individual made by a competitor; and that Weiss never had been put on notice regarding his failure to “cover” certain accounts, which ultimately led to his firing.

Importantly, the Court went into detail about the company’s “shifting explanations” for Weiss’ termination, stating specifically that “[i]nconsistent or even post-hoc explanations for a termination decision may suggest discriminatory motive.” After characterizing JPMorgan’s explanations as “vaguely formulated and technically inaccurate,” the Court pointed out that a jury can infer pretext from the company’s failure to present those termination reasons to Weiss initially, especially in light of an HR employee’s testimony that the company advocated “giving true reasons” to employees who are fired. Further, the Court pointed out that JPMorgan acted outside of its normal termination procedures by failing to allow Weiss an opportunity to correct his filings prior to the termination decision. While the company asserted that urgent business circumstances justified the deviations from its customary procedure, the Court stated that “Whether Weiss’ superiors were persuaded by a sense of business urgency or [by] age discrimination to contravene normal procedures to terminate Weiss is a question for the jury.”

This case is a strong reminder to employers to: (1) act consistently with company policies and procedures; (2) train supervisors and managers to effectively conduct termination meetings; (3) base employee discharge decisions on business-related, fully-documented reasons. To do otherwise may be to create a circumstance in which the company is forced to rely on subjective assessments and incomplete rationales, which can, as in this case, lead a court to find sufficient issues of material fact to allow the matter to be decided by a jury.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects members of the armed services against employment discrimination related to the benefits of their employment. The 7th U.S. Circuit Court of Appeals has held that such protection refers to employment benefits that are “extended generally to military and non-military employees alike,” and that discontinuing a benefit that had been extended only to employees with military obligations does not violate the USERRA. Crews v. Mt. Vernon, 7th Cir., No. 08-2435, June 2, 2009.

Ryan Crews, an officer of the Police Department in Mt. Vernon, Illinois, has been a member of the Army National Guard since 1988. As a Guard member, Crews is required to attend certain weekend training and preparedness exercises on a monthly basis. Under the collective bargaining agreement between the City and the police employees, the City has the discretion to establish work schedules to meet operational needs. Police officers’ weekly schedules typically consist of five 8-hour shifts and two days off. Crews’ military obligations frequently conflict with his work schedule. In these instances, the City has grants time-off to Crews (and other Guard member/employees) to attend drills. While the leave is unpaid, the City has allowed Guard member/employees to turn in their military pay in exchange for their regular City pay, so as not to incur any net loss in weekly wages. Guard member/employees also may allocate paid time off to days missed for military drill, thereby collecting both City pay and military pay for those days.

For several years, the City maintained a policy under which Crews was permitted to reschedule work shifts that fell on drill weekend, allowing him to use weekend-drill shifts as his weekly days off. This allowed Crews to collect military pay for the drill weekends, while also collecting his full weekly City pay. Three other Guard member/employees were granted this scheduling benefit between 2000 and 2003.

In 2006, the City hired two additional Guard member/employees. At that point, it was determined by the City that extending the policy to an increasing number of individuals would result in numerous and costly scheduling conflicts, because the policy allowed Guard member/employees to work weekday shifts that already were fully staffed. Following the policy’s rescission, Crews no longer can collect a full week’s pay during his drill weeks, unless he uses his limited paid time off. This problem is especially acute for Crews because, as a corporal, his regular work schedule is Wednesday through Sunday; he has no ability to bid for preferred days off like lower-ranking officers do.

In 2006, Crews filed a complaint against the City, alleging that the rescission of the work scheduling policy denied to him a “benefit of employment” based on his military status, in violation of the USERRA. The lower court denied Crews’ motion for summary judgment, and found in favor of the City. Crews appealed to the Seventh Circuit, which upheld that decision. According to the appellate court, the “benefit of employment” referenced in the USERRA is one that is provided to both military and non-military employees and, therefore, that law “reaches only discriminatory employment actions that provide military employees with fewer benefits.” Rescinding a preferential work schedule, thereby placing Crews on equal footing with other police department employees who required days off for non-military reasons, was not a violation of the USERRA.

The City’s ability, as set forth in the relevant collective bargaining agreement, to “establish work schedules to meet operational needs,” is likely to have been a factor in the Court’s analysis of this issue. Employers who plan to modify or eliminate preferential schedules previously granted to service member/employees should base such modification or elimination on a documented business reason. To do otherwise may support a claim of discriminatory treatment or retaliation under the USERRA.

USERRA does more than prevent discrimination and, according to the Department of Labor, “establishes a floor, not a ceiling, for the employment and reemployment rights and benefits of those it protects.” Therefore, nothing in the Seventh Circuit’s decision suggests that employers should not continue to provide greater benefits to military service members. Also, if such increased benefits are made part of a negotiated agreement, employers may be legally obligated to continue their implementation. In situations similar to this case, however, in which a more favorable work schedule was instituted solely for the convenience and benefit of military service members, it is likely that employers can modify or eliminate such benefit for business-related reasons without violating the USERRA.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link