Right-to-work legislation coming to you soon?

In a heavily watched and strenuously litigated case, the Seventh Circuit upheld Wisconsin’s right-to-work statute. The decision is likely to embolden efforts designed to bring right-to-work to every state. Currently, almost thirty states have some form of right-to-work legislation in place. Wisconsin‘s, which follows on the heels of Indiana‘s, were two of the strongest. Both prohibited not only any requirement that a worker become a union member, but also that they be required to pay any dues, or even fees. Both were upheld. Federal legislation is pending that would establish right-to-work in every state.

Source: INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139 v. SCHIMEL, Court of Appeals, 7th Circuit 2017 – Google Scholar

Employer’s attorney may be held liable for retaliating against client’s former employee

In a decision that is already drawing harsh criticism, the Ninth Circuit held that an attorney may be liable to his client’s former employee for retaliation where the attorney contacted federal immigration authorities at U.S. Immigration and Customs Enforcement (ICE) to advise, “if there is an interest in apprehending” the plaintiff, he would be attending a deposition on a certain date. ICE conducted its own investigation and determined “based on our records he has no legal status.” The plaintiff learned that ICE was aware of him, alleged that realizing the same had caused him severe, and as a result, he said, settled his wage-hour lawsuit against the former employer. After settling with the company, he sued its attorney, again, not his own attorney but opposing counsel. The Ninth Circuit noted that attorney had allegedly communicated with ICE about five other plaintiffs and held that the plaintiff’s claim should be allowed to proceed.

In doing so, the Ninth Circuit reviewed the statutory language of FLSA’s retaliation provisions. The Fair Labor Standards Act (FLSA) is the nation’s primary wage-hour law. The Ninth Circuit read its anti-retaliation language as being broader than its substantive provisions regarding overtime, minimum wage, etc. The Ninth Circuit said the broad anti-retaliation language was more like Title VII’s (the nation’s leading anti-discrimination law). The Ninth Circuit held that, given the breadth of FLSA’s anti-retaliation language, such a claim is viable.

The decision has been called “flat-out bonkers” and possibly “the year’s worst employment law decision” and is being cited as an example of a decision by a court that “has officially lost its mind.”

Source: Arias v. Raimondo, Court of Appeals, 9th Circuit 2017 – Google Scholar

Tenth Circuit reaffirms disability and accommodation requirements

The Tenth Circuit reaffirmed the requirements an employer faces when a less than clear employee presents with a potential disability. In this case, the plaintiff had a pacemaker but otherwise no restrictions and needed no accommodations at work. He required a battery replacement to the pacemaker, and the procedure left him with an infection. He took FMLA leave then, while on leave, informed his employer he wouldn’t be able to return for an additional week after his FMLA leave expired.

He did not say he had a disability, but the Tenth Circuit held that the company knew enough to know that he did. The Tenth Circuit rejected the argument that, with his pacemaker, the plaintiff had no restrictions. The court noted that established ADA law requires courts to consider the plaintiff’s condition without the benefit of ameliorative treatments, like a pacemaker (medication, eyeglasses, etc.). But for the pacemaker, the court held that the company knew enough to know the plaintiff’s condition would have beenbad enough to constitute a protected disability.

With regard to the fact that he was entitled to no more FMLA leave, and with regard to the fact that he never actually asked for extra leave at the end of his FMLA leave, the Tenth Circuit held he’d effectively put the company on notice that it should have engaged in the ADA-required interactive process while he was on his FMLA leave. Even though he didn’t ask for extra leave, the company should have discussed with him whether his disability required a reasonable accommodation, and if it had done so, one potentially reasonable accommodation would have been an additional unpaid week’s leave.

Indeed, the facts of the case began even earlier with an OSHA investigation that the plaintiff maintained he’d been suspected of starting by anonymously complaining to OSHA. He sued for that as well, and the Tenth Circuit held that the foregoing, and other alleged conduct, could have been part of a claim for OSHA retaliation as well (under a Kansas law that recognizes such claims as public policy violations). Therefore, he was allowed to proceed on both his ADA and wrongful discharge claims.

The case is a good illustration to employers of the need to fully consider, in consultation with legal counsel, known information, even when a plaintiff seems otherwise fine, only suffers what seems to be a temporary setback and is himself less than clear about what he needs from the company.

Source: Yinger v. Postal Presort Inc., — F.3d —, case no. Court of Appeals, case no. No. 16-3239 (10th Cir. 6/8/17)

New I-9 form from USCIS

USCIS has issued a new I-9 form. Employers must begin using the new form no later than September 18, 2017, but no need to wait: Employers may begin using the new form before then.

Source: Revised Form I-9 Now Available | USCIS

Second Circuit rejects EEOC’s expansive interpretation of Title VII’s “limit, segregate, or classify” clause

Title VII is the nation’s leading anti-discrimination law. Most Title VII cases involve its prohibition against discrimination on the basis of race, religion, sex, etc. Many involve its anti-retaliation provision. But, few involve a clause in Title VII that says employers may not “limit, segregate, or classify” employees based on race, color, religion, sex or national origin.

In this case the EEOC argued that the employer did just that when it alleged transferred the African-American sales manager from its retail store that served largely Hispanic customers.

The employer responded that, even if it had, the transfer did not hurt the sales manager; it did not cause an adverse employment action, like a cut in pay, demotion, termination, etc. The EEOC responded that it didn’t matter. The EEOC argued that any limitation, segregation or classification was prohibited, even if it caused no harm to the plaintiff.

The court rejected both arguments. The court agreed with the EEOC that an adverse employment action was not required, but it agreed with the employer that the EEOC had to prove the transfer in some way “deprived or even tended to deprive him of any employment opportunity or otherwise adversely affected his employment status” (emphasis in original).

Source: EEOC v. AutoZone, Inc., — F.3d —, case no. 15-3201 (6/20/17).

Typo might have cost 34-times annual pay in severance!

A typo in a severance agreement might have cost one employer, big. Fortunately the error was so large, the Michigan Court of Appeals set aside the agreement as an obvious mistake.

The company intended to offer the plaintiff severance in the total amount of $80,805.97, to be paid over 34 weeks, but when the HR professional wrote up the agreement, she accidentally wrote in $80,805.97 to be paid weekly for 34 weeks. It as an obvious error. The employee earned approximately $123,000 a year. The employee said nothing, signed then sued when the company refused to pay him $2.7-million plus, instead of $80,805.97.

The Michigan Court of Appeals noted that the law considers mistakes in contracts different depending on if they are a “mutual” mistake (where both parties misunderstood what they signed) or a “unilateral” mistake (where only one misunderstood). Here, the employee claimed he thought he was really going to get the full $2.7-million, so this was a case of unilateral mistake; it was only the company claiming a misunderstanding.

The law required the company to show, in the event of a unilateral mistake, that not only its HR professional misunderstood what she signed but that the employee knew it was a mistake. The HR professional submitted an affidavit establishing she had made a mistake, but the employee denied that he thought there’d been a mistake. The employee claimed that he thought at the time he really deserved $2.7-million in severance; he submitted an affidavit claiming he thought $2.7-million in severance was “fair based on my 28 years of service.” The court noted that he submitted no evidence to suggest any other employee was paid such an amount or had been. Perhaps most importantly it was uncontested that, whatever the severance agreement said the weekly amount would be, the HR professional had told the employee it would be a “continuation of his regular salary,” which a 34x increase certainly would not have been.

Having decided the $2.7-million number was a mistake, the court then, instead of setting aside the agreement in its entirety, affirmed its being rewritten to be a total of $80,805.97 paid out over 34 weeks.

Source: COA 331283 FRANCOIS EL-HAYEK V TRICO PRODUCTS CORPORATION Opinion – Per Curiam – Unpublished 06/27/2017

Individual employee non-competes struck for failure to bargain with the workers’ union

Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain.

In a previous post this blog summarized a Sixth Circuit case, Detroit Edison, that held an employer, who gave notice, was not required to negotiate with a union that merely griped about changes without actually requesting negotiations.

In this case, the company failed to give notice. Instead the company simply started requiring union-represented employees to sign a confidentiality agreement that contained non-competes, invention assignment language, non-interference language, and non-solicits as to both employees and customers. While this type of agreement is not, itself, unusual in the American workplace, unionized employers need to remember that unions are the exclusive bargaining agent of represented workers, so the company must give notice of changes to wages, hours and working conditions, and if negotiations are requested, negotiate over the changes with the union.

Worse, this agreement contained an at-will disclaimer. Again, an at-will disclaimer is common in the American workplace, but here it contradicted the “just cause” discharge clause that the union had bargained for in its collective bargaining agreement with the company.

The D.C. Circuit had no difficulty upholding the NLRB’s decision against the company.

Furthermore, the Court affirmed the Board’s holding that the non-solicits were themselves violative of NLRA rights (under section 7 of the NLRA). (Section 7 rights apply even to employees who are not represented by a union.) Under section 7, employees have the right to engage in protected concerted activity to further their wages, hours and working conditions. Doing so through a union is just one way they may exercise this right. Another is to solicit support from a company’s customers by way of a customer boycott. Here the customer non-solicit prohibited employees from “directly or indirectly” soliciting customers “to terminate or otherwise alter his, her or its relationship with the Company.” This aspect of the Court’s ruling appears highly controversial. It remains to be seen if other courts will interpret section 7 so broadly as to bar a customer non-solicit like this.

The case was Minteq International, Inc. v. NLRB, case no. 16-1276 (D.C. Cir. 4/28/17).

Bill Berger – L2S Legal, LLC – Denver – Lawyer Profile Chambers USA Guide 2017 – Chambers and Partners

Honored to have been selected again for inclusion in Chambers!

Source: Bill Berger – L2S Legal, LLC – Denver – Lawyer Profile Chambers USA Guide 2017 – Chambers and Partners

Union gripes held not a request to bargain

Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain at that point. Unions often do not; many unilateral changes are everyday and, for unions, often involve no issue warranting negotiation.

In this case, the union, through its president, expressed discontent with a change, condescendingly threatening the company’s labor relations director with “a board charge honey.” He said he would “have to come to (company headquarters) for this one.” While he followed through with his threat to file a board charge, he did not actually request to negotiate, schedule a time to come to, much less go to corporate headquarters.

While a divided NLRB held that his expressions of discontent were sufficient to trigger negotiations, the Sixth Circuit disagreed. “These comments expressed disapproval, to be sure; but that establishes only protest,” the Court held.

The pertinent question is whether, in light of the record as a whole, they clearly signaled a request to bargain. On that point, they were at best ambiguous rather than clear.

The case was Ohio Edison Co. v. NLRB, case no. 15-1783 (6th Cir. 2/10/17).