Ban On Political Payroll Deductions Does Not Infringe Free Speech, February 25, 2009
The Supreme Court ruled that an Idaho law barring local government employers from allowing payroll deductions for political activities does not violate a union’s First Amendment right to free speech. (Ysura v. Pocatello Educ. Ass’n, U.S., No. 07-869, 2/24/09). Writing for the 6-3 majority, Chief Justice Roberts noted that while the First Amendment prohibits the government from abridging the freedom of speech, it “does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.”
A group of public employee unions had challenged Idaho’s Voluntary Contributions Act (VCA). The VCA, which was enacted in 2003, amended the state Right to Work Act and deleted a provision that allowed payroll deductions to be made to a political committee if the employee annually provides a written authorization. The VCA banned unions from using dues for political activities, required unions to pay for political activities out of separate segregated funds, placed restrictions on union's solicitations for donations to such funds, and banned payroll deductions for political activities even if authorized by the employees. “Political activities” were defined to include “electoral activities, independent expenditures, or expenditures made to any candidate, political party, political action committee, or political issues committee or in support of or against any ballot measure.”
While acknowledging that content-based restrictions on speech are presumptively invalid and are subject to strict scrutiny, the court disagreed with the unions’ position that the ban on political deductions treats political speech differently. Chief Justice Roberts wrote, “[w]hile in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones.” He further pointed out that Idaho “is not constitutionally obligated to provide payroll deductions at all.” According to the court, “[w]hile publicly administered payroll deductions for political purposes can enhance the unions' exercise of First Amendment rights, Idaho is under no obligation to aid the unions in their political activities ... And the State's decision not to do so is not an abridgement of the unions' speech; they are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor.” Because the unions’ free speech rights are not infringed, the VCA is not subject to strict scrutiny. The State needed only a rational basis for banning political payroll deductions. In this case, the ban was reasonably “justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics.”
Supreme Court Declines Review Of Retaliation Claim, February 25, 2009
Alshafi Tate is a former employee of Executive Management Services in Indianapolis. Tate claimed that his employment was terminated in retaliation for his decision to discontinue a consensual sexual relationship with his female supervisor. Tate told his supervisor he was ending their relationship because he had recently married and he wanted to be faithful to his wife. The court ruled that Tate did not have a Title VII retaliation claim, because there was no evidence that Tate believed he was opposing activity made illegal by Title VII. Tate v. Exec. Mgmt. Servs., Inc., 546 F.3d 528 (7th Cir. 2008). In other words, Tate did not have a retaliation claim because he ended the relationship for personal reasons, rather than because of a belief that his supervisor’s demands were unlawful. On February 23, 2009 the Supreme Court declined to review the Seventh Circuit’s decision.
But I Thought Unions Were Supposed to Bring People Together? February 20, 2009
Earlier this month, a group of officials with UNITE HERE filed a lawsuit in New York to try splitting the union into two units. Union officials describe the complaint as a product of a civil war within UNITE HERE. According to the Complaint, "There are broad and irreconcilable differences" within the leadership ranks of the union. That follows closely upon a legal action against the US Airline Pilots Association filed by pilots who are convinced the union failed to represent them responsibly. The lawsuit came after the pilots already had been forced to arbitration with the union to try to resolve differences in 2006. The USAPA lost a motion to dismiss and the case is moving forward. Ah, brotherly love!
Remember When Staying Home Sick Meant Staying Home? February 19, 2009
The Village of Hempstead, New York, determined that if it was going to pay an employee to stay home sick from work, she should stay home sick. Dawn Borum, a police detective collecting benefits for not working, considered the policy discriminatory. She wanted to go to church while she collected pay for being home sick, which she could not do under the policy during the time that she was supposed to be home sick and unable to work. Borum claimed that the policy violated her religious freedom, and discriminated against her on the basis of race and sex. The religion component was dismissed for procedural reasons, but Borum is permitted to pursue her race and sex claims against Hempstead. Omigod!
Most Recent Congressional Efforts To Expand FMLA Coverage, February 17, 2009
On the heels of the new FMLA regulations implemented by the DOL last month, Rep. Carolyn B. Maloney (D-NY) has introduced the Family and Medical Leave Enhancement Act (H.R. 824) which would significantly expand FMLA coverage. Rep. Maloney's bill amends the statute to allow employees to use FMLA leave for "parental involvement" activities, such as their children's or grandchildren's extracurricular activities, as well as for "family wellness" to take family members to doctor's appointments. In addition, H.R. 824 would extend coverage under the FMLA to employees working for businesses with more than 25 employees. This would significantly expand coverage under the act, which currently only applies to employees working for companies with 50 or more employees working within a 75 mile radius. Rep. Maloney introduced similar legislation during the last congressional session that died in committee. With only eight co-sponsors so far, it remains to be seen what level of success her bill will have this session.
Senior Citizen Employee Yelling At Other Seniors Has No Age Discrimination Claim, February 17, 2009
The grievant in a recent arbitration decision was an employee of a nursing home who herself was in her early seventies. She had worked at the facility since the early 1970's in a variety of positions, finally ending up in the dietary department. One day during lunch, a resident asked the grievant for a glass of ice tea. When the grievant failed to bring the glass, the resident asked again. In response, the grievant became angry, told the resident to "shut up" and that she was "stupid." The resident complained, and the nursing home conducted an investigation that ultimately led to the grievant's termination two days later. She filed a grievance and complaint that there was no just cause to terminate her and instead that she was fired because of her age.
The company's position that it had just cause to fire the employee was upheld in arbitration. The grievant had been suspended for three days only a few months earlier for verbally abusing a resident. The arbitrator also believed the testimony of other residents who witnessed the altercation. On the other hand, the grievant could not remember many details about her earlier suspension and could not even remember the name of the grandson she was raising. The arbitrator found that the nursing home had given her fair warning of the consequences of continued verbal abuse of residents and had just cause to fire her. As for her age discrimination claim, the arbitrator credited the testimony of nursing home managers who denied ever telling the grievant that she "was getting too old for the job," as she had claimed. Instead, he relied on records showing that the company had hired several senior citizens, at least one of whom was born in 1938, to deny her age claim and deny the grievance. GMG Inc., 125 LA 1537 (Heggie Jan. 15, 2009).
Kitchen Worker With Double Identity, February 17, 2009
The story of El Palenque Mexican Restaurant and Cantina in Houston should serve as a good reminder to employers of the importance of maintaining accurate payroll records. Jesus Bustamante, an undocumented foreign worker in the restaurant's kitchen, sued El Palenque for failure to pay overtime wages in violation of the FLSA. Bustamante, who usually worked the early shift, claimed that he was forced to work under a different identity – that of his cousin, Angel Bustamante – for afternoon shifts so that the restaurant would not have to pay him any overtime. Jesus claimed that he clocked in as himself in the morning and as Angel in the afternoon and received two different paychecks.
El Palenque's defense was pretty simple – Jesus and Angel were two different people, so Jesus was not entitled to any overtime for Angel's hours. Restaurant managers knew of an Angel Bustamante, who strangely was taller and heavier than Jesus. And the restaurant used a fingerprint timekeeping system, making it almost impossible for one person to clock in as two different people. Finally, El Palenque produced its payroll records showing that on at least one occasion, Jesus and Angel worked the same shift, and that during one week their combined hours were less than ten. When Jesus could not explain how that occurred, if he was actually working under a double identity, the court found he could not overcome the evidence in the payroll records to make his case. The court also noted that the restaurant's records showed that it paid several other employees overtime, undermining Jesus's claim that it refused to pay him overtime. Bustamante v. El Palenque Mexican Rest. & Cantina Inc., No. 4:07-cv-02506 (S.D. Tex. Feb. 3, 2009).
HR Manager’s Failure to Check FMLA Rules Results in Double Damages for Employee, February 6, 2009
An HR managers failure to check the FMLA rules before deciding an employee was not eligible for FMLA leave resulted, not only in a jury verdict for the employee, but in the doubling of damages because the court found that the employer had not acted in “good faith” as required to avoid liquidated damages. Brown v. Nutrition Mgmt. Servs. Co., No. 06-2034, 2009 U.S. Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)
Brown was hired in November 2002, and when her services were contracted to a different group in August 2004, she continued to work in the same capacity. In October 2004, Nutrition Management fired Brown when she told them she was pregnant. Brown sued for violations of the FMLA as well as other claims. The company claimed that Brown was not eligible for FMLA leave because she was in her probationary period with the new group. The jury disagreed and award Brown $ 74,000. Brown sought liquidated damages, claiming that the company did not act in good faith.
The company argued it had a good faith belief that Brown was not an eligible employee under the FMLA, and offered testimony of its director of human resources, who was also a lawyer. But the human resources director had done nothing other than make a cursory decision. He did not check to see whether Brown really was eligible or not. The court noted that “Nutrition Management presented no evidence that it researched the requirements of the FMLA, or was otherwise aware of the factors governing whether the FMLA would apply to Brown's request for leave. Nutrition Management, having made no legal inquiry into the requirements of the FMLA, had no reasonable grounds to believe Brown's termination was not a violation.“
There is an important lesson to be learned here. The FMLA is a highly technical law. The FMLA’s new regulations have created even more reasons to make sure that employers are familiar with the nuances of the law, and are consulting knowledgeable counsel before taking adverse action. It is more than worth the cost.
No Sexual Harassment in Unisex Bathrooms, February 4, 2009
Companies with unisex bathrooms sometimes face - and sometimes lose - claims of sexual harassment by employees who suffer invasions of privacy, sex-based insults, or threatening behavior by members of the opposite sex in the restroom. A New York federal court has held, however, that a female employee who complained of no such behavior, but instead that the employer's unisex bathrooms were often dirty and unavailable to her because men were using them, cannot proceed with her claim of sexual harassment. The court found that the employee could not establish that the bathroom circumstances rendered her workplace "objectively hostile" to women, but amounted only to "mere inconvenience" that does not trigger a Title VII claim. See Dauer v. Verizon Communications Inc., No. 03-5047 (S.D.N.Y. January 26, 2009).
Federal Contractors: Executive Order – Notice of Rights of Employees Under Federal Labor Laws, February 3, 2009
On January 30 the President issued an Executive Order requiring that all federal contracts include a provision requiring that contractors post a notice in plants and offices in which employees covered by the National Labor Relations Act are employed, describing the rights of employees under federal labor laws. The Executive Order takes effect immediately and applies to federal contract solicitations issued on or after the effective date of implementing regulations to be issued by the Secretary of Labor. The Executive Order revokes Executive Order 13201, which required federal contractors to post notices of employee "Beck" rights concerning the payment of union dues or agency shop fees throughout their facilities and to include provisions regarding compliance with E.O. 13201 in all non-exempt subcontracts. The Executive Order also directs the heads of executive departments and agencies to revoke any implementing rules and regulations of Executive Order 13201.
Delay in Effective Date of E-Verify , February 3, 2009
An amendment to the final rule requiring certain federal contractors to participate in the Department of Homeland Security’s E-Verify system, was published in the January 30 Federal Register. The amendment delays the effective date of the final rule to May 21,2009.
Delay in Effective Date of Amended Form I-9, February 3, 2009
The U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security, has announced an extension of the effective date of its previously released Interim Final Rule amending the types of acceptable identity documents and receipts that employees may present to their employers for the completion of Form I-9, Employment Eligibility Verification. The rule and the required use of the amended Form I-9 included in the rule was scheduled to take effect on February 2. The announcement extends the effective date to April 3, 2009, and re-opens the comment period on the rule for 30 days.
No Implied Right to Sue Public Employers Under Section 1981 Says Third Circuit, February 1, 2009
Joining the majority of federal appellate courts that have considered the issue, the Third Circuit has held that Section 1981 of the Civil Rights Act of 1866, as amended by the 1991 Civil Rights Act, does not an implied right to sue public employers. McGovern v. Philadelphia, No. 08-1632 (3d Cir. January 28, 2009).
The court held that nothing in the 1991 amendments to Section 1981 suggests that Congress intended to overturn the Supreme Court's decision in Jett v. Dallas Independent School District, 491 U.S. 701(1989), which held that Section 1981 provides no remedy against public employers. Five other circuits have followed this reasoning; only the Ninth Circuit has come to the opposite conclusion. See Federation of African American Contractors v. Oakland, 96 F.3d 1204 (9th Cir. 1996).
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