Union Leader Salaries Soar

Issued just before the Supreme Court’s Janus decision, a survey of union leader salaries is a stunning bookmark to the Court’s blockbuster decision holding that public employees cannot be required to pay “fair share” fees, much less dues, to unions. The survey is based on public filings by the unions. It lists total compensation packages for the 10 highest paid union presidents, ranging from $449,852 to $792,483, which the survey notes is several times higher than the average salary for CEOs, $196,050, as reported by the U.S. B.L.S. Statistics like this are likely to continue to fuel right-to-work legislation and Janus-related litigation across the country.

“Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use”

The Denver Post reports, “The state of Colorado is denying half the workers’ compensation death benefits to a woman whose husband died while working on a ski lift because he had marijuana in his system.” Colorado workers compensation law does impose a 50% penalty on workers compensation benefits (not including medical expenses) for workers who violated safety rules, including positive drug tests. The Denver Post article reports that in this, the first case to raise the issue, a worker’s positive test for marijuana, following his having been killed on the job, was deemed grounds to deny his widow 50% of the death benefits to which she and their family would otherwise have been entitled. The case has not been appealed to the courts; it currently remains at the agency level. However the issue is ultimately resolved, the case remains a powerful reminder that marijuana remains, in all states, a criminally prohibited drug. While some states, like Colorado, have exceptions from prosecution for state law enforcement, applicable to medical and even recreational use, those are merely exceptions from criminal law enforcement; the use of marijuana itself remains a criminally prohibited act. 

Source: “Colorado denies widow half of late husband’s workers’ compensation due to his marijuana use,” the Denver Post (7/17/18).

Transfer to new supervisor held not a “reasonable accommodation”

What if a disabled employee’s preferred accommodation is to be transferred to a new supervisor? In a recent Pennyslvania case, the Third Circuit held that an employer was within its rights to deny such a request as it would not have been a “reasonable accommodation” required under the ADA (the Americans with Disabilities Act).

The Third Circuit observed that the employer had met its obligation to engage in the ADA’s required “interactive process” by exploring the disabled worker’s purported need for accommodation. The company had “met with her, considered her requests, and offered several accommodations, including a part-time work schedule.” The worker had, in turn, rejected all efforts to reach an accommodation. The Court observed that she was simply “unwilling to agree to any accommodation that included continued supervision by” her supervisor. The Court rejected her request for a new supervisor, holding it was not required by the ADA, and noting further that courts are not authorized by the ADA to restructure the terms of employment.

Source: Sessoms v. Univ. of Penn., case no. 17-2369 (3rd Cir. 6/20/18).

“Zero Tolerance” policies go too far according to … the EEOC?

Employers should steer clear of “zero tolerance” policies according to the EEOC. A “zero tolerance” policy provides that any form of proscribed behavior (typically sexual harassment or discrimination) will result in immediate discharge.

Zero tolerance policies can “chill reporting,” cautions EEOC Commissioner Chai Feldblum (a Democrat appointee). According to Commissioner Feldblum, individuals may choose not to report harassment when they know it might result in the accused’s discharge: “A lot of people don’t want their co-worker to be fired, they just want the conduct to stop.”

It’s not just one EEOC Commissioner who doesn’t like zero-tolerance policies. It’s also the position taken by the EEOC’s 2015 task force on harassment. Its July 2016 report called “zero tolerance” policies “misleading and potentially counterproductive.” Like Commissioner Feldblum, the task force cautioned that such policies “may contribute to employee under-reporting of harassment.”

Instead, the EEOC recommends a policy that reserves to employers the ability to determine the appropriate level of discipline, up to and including, but not necessarily, immediate discharge.

Source: “Beware of ‘Zero Tolerance’ Policies, EEOC Commissioner Warns,” BNA Bloomberg (7/11/18).

California Court of Appeals rejects double-dipping for penalties in certain wage-hour cases

California state law provides for penalties and other liability under California’s Private Attorney Generals Act when an employer fails to provide an accurate, itemized wage statement (which statements must contain certain types of information further specified under California law). But what if the statement was correct when issued but later the employer is held liable for additional amounts, such as overtime or minimum wage amounts? Do otherwise correct wage statements become retroactively inaccurate because the employer is later held liable for additional amounts like overtime or minimum wage? Contending that it does, it has not been uncommon in California for plaintiffs in wage-hour casesto file wage-statement claims demanding the extra penalties.

A division of the California Court of Appeals recently rejected double-dipping, holding that, no, the wages statement do not become retroactively inaccurate, such that an employer becomes liable for extra wage-statement related penalties when they are found liable for amounts like overtime and minimum wage.

Source: Maldonado v. Epsilon Plastics, case no. B278022 (Cal.App. 4/18/18).

Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

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Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision is anticipated to strip organized labor of billions of dollars in revenues, much that had previously, in no small part, been used towards political contributions. The Supreme Court reasoned that requiring workers to pay even “fair share” fees, much less dues, was ultimately requiring them to support the unions’ political activities; workers should be free, as part of the constitution speech rights, to decide whether or not to support the unions’ political activities.

Janus was decided under the First Amendment, which only applies to government action. Private workers do not have First Amendment rights in their workplaces, at least as against their employers.

However, one employer is arguing that Janus should be extended to cover private workers nonetheless because, the employer argues, when the NLRB and courts attempt to enforce union requirements for dues and service fee collection, then the NLRB and courts are themselves the government actors. In other words, while the First Amendment does not limit a private employer’s ability to curtail worker speech, it limits the NLRB and courts’ ability to curtail worker speech. The employer already has a pending appeal before the Ninth Circuit, where it has just asked the Ninth Circuit to consider this new argument based on the Supreme Court’s Janus ruling (Communication Workers of America, AFL-CIO v. NLRB v. Purple Communications, Inc., Case Nos. 17-70948, 17-71062, and 17-71276).

The issue is no doubt going to be heavily litigated, but it appears the employer has the better side of this particular argument. If — as we now know from Janus — the Constitution’s speech rights in the First Amendment protect workers against compelled union contributions, they arguably constrain not only governmental employers, but all other governmental actors, including the NLRB and courts, from stripping employees, even private employees, of those same rights.

The EEOC and a mixed fallout from #MeToo

Recent developments at the EEOC reflect a mixed fallout from the #MeToo movement.

Despite massive social change seen at many levels from #MeToo, with celebrities, politicians and business leaders all being called to answer for allegations of sexual harassment — and despite many lawyers who anecdotally report seeing increased charges in their own practices — EEOC Acting Chair Victoria Lipnic reported June 11 that the EEOC has yet to see a significant increase in sexual harassment charges.

Notwithstanding a lack of increased charges, the EEOC is determined not to be left behind by the #MeToo movement. The agency itself has formed a task force to study sexual harassment and, immediately following the task force’s meeting, the EEOC filed seven lawsuits (on and and about June 11, 2018) involving allegations of sexual harassment. Additionally, the EEOC has identified sexual harassment as one of its 2017-21 strategic enforcement priorities.