Friday, December 31, 2010

Top 10 Developments in Labor and Employment Law in 2010

Here are my picks for the biggest developments in Labor and Employment in 2010. There was a lot going on in 2010 and so I'm sure I've overlooked some big things.  Feel free to point out what I missed or tell me why I'm wrong in the comments:

1. Bullying
2010 was the Year of the Bully.  Nationwide, bullying gained attention and anti-bullying measures gained traction.  Below is a graph of Google Searches for "bullying" from 2004-2010:
Much of the bullying attention involved schools and children.  However, "a rising tide raises all sails" and bullying in the workplace also received attention.  New York passed an anti-bullying statute in its workplaces in May. David Yamada over at Minding the Workplace is an advocate for this movement, while Michael Fox over at Jottings by an Employer's Lawyer holds the contrary view.  Whether you're concerned or not concerned about bullying or anti-bullying legislation, expect to see more of this issue in 2011.  The graph below shows the appearance of bullying in news stories from 1980-2010. 


2. The Supreme Court invalidates about 600 NLRB Decisions
In  New Process Steel the Supreme Court struck down 27 months worth of decisions decided by a two-member National Labor Relations Board.

3. 27 month two member Board ends with appointments of Becker and Pearce.

The long stint of a two member Board at the NLRB came to an end when  Becker and Pearce were appointed in April.


4. Health Care Law
Passed in March, the Patient Protection and Affordable Care Act  is not primarily a labor or employment law, although it will certainly impact the workplace and it does create new employer obligations/employee rights.  These include  obligations to provide insurance that kick in in 2014 and the employer obligation to provide breaks and an area (other than a bathroom) to nurse or express milk (pump) that is already in effect.  Besides its direct impact, the law may have indirect effects in workplace law, such as possible impact on state workers' compensation schemes.

5. Whistleblower Rights
The Whistleblower Protection Enhancement Act passed and agencies are expecting to be inundated with new whistleblower claims.  Judging by the trend in the word's appearance in newspapers, I would say they are right:
but looking at the google search trends for "whistleblower", it doesn't seem like people are any more interested in finding out about whistleblower rights today than they were last year:
6. Labor Unrest in China
Labor unrest and strikes are a new development in China, and possibly a sign of things to come.  China's One Child policy is now shifting power into the hands of only children who are in demand in China's factories.


7. The NMB Changes what it takes to be a Majority
The National Mediation Board (which has jurisdiction over entities covered by the Railway Labor Act) changed its majority requirement so that voters who don't vote are no longer counted as "no's".  This means that in NMB elections, like NLRB elections, a union only has to win a majority of those who vote, not a majority of all employees.


8. EEOC issues GINA Regs
In November, the EEOC passed new regs on the Genetic Information Nondiscrimination Act, a law still little understood, that will be effective January 9, 2011. GINA and its regulations will become more important for employers as the science of genetic testing improves. But the regulations are important now as even casual conversations about an employee's health or family history could run afoul of GINA if the employer asked too many questions.

9. NLRB issues complaint in facebook firing case
See the Jeffery Hirsch's thoughts here.

10. Lewis v. City of Chicago
Philip Miles has written extensively on this case over at lawffice space  and has named this the employment law case of the year. Here is his take:
"First, Lewis was a rare unanimous decision for the Court as Title VII cases are often sharply divided. Second, it set a clear rule: The statute of limitations for a disparate impact claim begins upon the application of the employer's practice, not the implementation.
What more could you ask for than a nationally binding precedent from a unanimous court with a clear rule of law? Sure, it didn't have the media hype of 2009's Ricci v. DeStefano (See my summaries of those opinions); nor did it generate the controversy of Gross v. FBL (summary here). Sometimes it's just nice to have a solid ruling on which to rely."

Happy New Year!
 

Tuesday, December 21, 2010

The Tooth Fairy

If you are looking for a last minute gift for that special labor lawyer in your life, look no further. The Tooth Fairy by Jake Hart (also known in the Eastern District of Pennsylvania as the  Honorable Jacob P. Hart or fancifully as Jacon Hart by those who would elevate him to tolkienian greatness) is sure to please.  As Steven LaCheen writes in the Florida Bar Journal, in The Tooth Fairy, "a union grievance hearing and arbitration proceeding are the centerpieces of a story that will hold your interest from first line to last, whether you know anything, or even care, about labor/management relations or not[.]"  I'm glad that I saw LaCheen's recommendation because the book is as gripping as it is gritty and an enjoyable read.  It has great characters, an intriguing plot, and plenty of commentary on labor law, labor relations and the human condition.   Set in eastern Pennsylvania, the book is quite descriptive and has plenty of action in the form of brawlers, mafia goons, and motor cycle gangs to hold your attention.

Sunday, December 12, 2010

Covanta Bristol, Inc. 356 NLRB No. 46 (Dec. 3, 2010)

In this case, we have another meeting between labor and management gone awry. In the heated context of this labor dispute, the union steward did not lose protection of the NLRA by telling his boss, among other things, "pull your head out of your ass." But while labor disputes carry with them an expectation of harsh exchanges, the boss here violates the NLRA when he ends the meeting by banging on the desk and saying, "You want to see intimidation? I'll show you intimidation!" A majority of the Board found this statement to be a threat of unspecified reprisal in violation of 8(a)(1). Full decision here.

Tuesday, November 30, 2010

Allied Mechanical, 356 NLRB No. 35 (2010)

Another case on the NLRB insubordination theme...

This case has an involved procedural history. First, there was Allied Mechanical I (Allied Mechanical,  Inc., 343 NLRB 631 (2004)) where the Board found that the Employer had  violated Section 8(a)(3) and (1) of the NLRA by issuing two warnings to employee and union advocate, Pinheiro.  Pinheiro's troubles did not end there, and later he mistakenly believed that he had been cut out of overtime.  He confronted his supervisor about the issue and the supervisor told him that due to the union and problems with the Labor Board, overtime procedures would be in accordance with the employee hand book. Pinheiro then made a comment that he probably regrets making.  He was suspended and terminated purportedly for insubordination and poor work performance.  The Board analyzed the suspension and discharge under Wrightline (rather than the Atlantic Steel analysis featured in most of the cases posted so far) in Allied Mechanical, 349 NLRB 1077 (2007), and reversed the ALJ, ruling that the suspension and termination were lawful. The Board assumed without deciding that a prima facie case had been made out, but found that the Employer had rebutted the prima facie case by proving it would have terminated Pinheiro with or without his union activity.  However, in 321 Fed. Appx. 581 (9th Cir. 2009), the 9th Circuit reversed the Board's ruling as to the Employer's rebuttal and remanded the case to the Board to decide if the prima facie case had been made out. Whereby Allied Mechanical, 356 NLRB No. 35 (2010) was born and Pinheiro's suspension/termination was found to be unlawful.

Tuesday, November 16, 2010

Trus Joist MacMillan, 341 NLRB 369 (2004)

For those who want an example of an otherwise protected employee going to far, here it is. In this case, an employee, Harris, who was a lead union organizer became the target of a plot by management. Management directed Harris' supervisor to give him an "unwarranted evaluation downgrade." The supervisor refused and was terminated, a move that deeply troubled Harris. Harris called for a meeting with the terminating manager, his new supervisor, and an HR representative. Full decision here.

Starbucks Coffee, 354 NLRB No. 99 (2009)

There is a lot going on in this 55 page decision and this clip really cannot be considered in isolation. The employee in question engaged in protected and concerted activity not depicted here and his termination which was purportedly in part  for the exchange depicted was found to be unlawful as a pretext. The full decision is linked  here.

Thursday, November 11, 2010

NLRB v. Thor Power Tool

NLRB v. Thor Power Tool is one of the classic cases of this line. Because of technical limitations, I had to change things a little bit, but the dialogue is pretty much the same.  In Thor, a steward represented an employee at a grievance meeting. The grievance meeting became heated and the steward called the boss a "horse's ass." The steward was fired for referring to his boss in this way.


Wednesday, November 10, 2010

Plaza Auto 355 NLRB No. 85

In Plaza Auto, a car salesman engaged in protected, concerted activity when he complained to and on behalf of the other salesmen regarding such issues as lack of breaks or bathrooms and pay. The salesman was also suspicious that the owner padded the vehicle costs which cut into commissions. Many people don't know that such complaints can be activity protected by the law. The salesman was called into a meeting with management and the owner. Things got a little...heated in the meeting. The NLRB examined whether the salesman lost protection of the NLRA by his conduct during the meeting. The full text of the decision is linked here.

Kiewit Power 355 NLRB No. 155 (2010)

In Kiewit Power, the electricians working on a turbine had a ten minute walk to a break area, but by contract, they only had a fifteen minute break. The practice was that they were allowed to walk to their break area and then begin the break, effectively taking a 35 minute break. However, management decided to end this practice and informed the electricians that they would need to break where they were working. The men objected on several grounds, including that where they were working was not a sanitary place to take a break. The men refused to obey the directive to break where they were and a supervisor was tasked with issuing verbal warnings (the first step in their progressive disciplinary system).  One interaction became...heated as depicted below. The NLRB had to determine whether an electrician's objections ceased to be protected activity.  The full text is linked here.