California Nurses Union and SEIU Agree to Get Along, March 26, 2009
There was talk of burying the hatchet, but for the longest time it seemed the location was the skull of the other side. Last week, however, the Service Employees International Union and the California Nurses Association/National Nurses Organizing Committee announced that they have reached an agreement to work collegially in organizing health care employees throughout the country. The collective effort will initially target the nation's largest hospital systems, including Tenet Healthcare Corp., HCA, and Catholic hospital chains, with Florida as "ground zero" for organizing.
Employee Free Choice Act Update, March 26, 2009
Keep your fingers crossed. Supporters of the Employee Free Choice Act were dealt a major blow this week when Senator Arlen Specter (R-Pa.) said that he will not support the card-check legislation (H.R. 1409, S. 560). If Spector went the other way, it would probably give EFCA supporters the 60 votes in the Senate needed to end debate and have a majority final passage vote. It appears that EFCA has the support of all 58 Democratic senators, and proponents are hopeful that Al Franken will be seated as a Democratic senator from Minnesota, giving them 59.
Estoppel Dooms Employer’s FMLA Defense, March 25, 2009
Employers have to be extremely careful when granting FMLA rights to employees who are not FMLA qualified, by handbook or otherwise. While the FMLA provides that nothing precludes an employer from being more generous than the FMLA requires, employers have found that terminating an employee who was mistakenly offered FMLA leave but who was really ineligible for the leave, can result in a lawsuit claiming that the employer was estopped from denying the leave, and the protections offered under the FMLA. This is precisely what happened in Reux v. Infohealth Mgmt. Corp., No. 08-5068 (N.D. Ill. March 10, 2009).
Reux was told by her supervisor that she would be entitled to maternity leave under the FMLA if she submitted the FMLA paperwork. She followed procedures in the company handbook, requested FMLA leave, and received written approval for the leave. Reux began what she believed was approved maternity leave under the FMLA. She gave birth and was scheduled to return to work. But instead she was fired for – she was told – "financial reasons." Reux sued. Only then did the company tell her that she actually was not eligible for FMLA leave because the company did not have 50 employees within a 75 mile radius.
Except, that was not what the handbook said. The handbook made no reference to the FMLA's limits and suggested all employees were eligible for FMLA leave. The court said the company was barred from arguing that Reux was ineligible for the FMLA leave because (1) it had misrepresented that she was eligible; (2) Reux had relied on this misrepresentation; and (3) she was injured (terminated) as a result of this reliance. While, under the 50/75 rule, Reux was not protected under the FMLA, the court held that the company could not first give her written and verbal assurances of her eligibility for the leave and then fire her after she took the approved leave. One of the lessons here? Employers need to review their handbooks, and make sure that they are not promising something on which they won’t deliver.
Obama Appoints Zoo Director to Supervise Federal Workers - Really!! March 6, 2009
President Obama has appointed John Berry, director of the National Zoological Park, to be the Director of the Office of Personnel Management. The OPM is the federal government's human resources department. Mr. Berry will become one of the highest officials in the federal government to be openly gay.
Secretary of Labor Pledges Anti-Business Stance, March 4, 2009
The new Secretary of Labor, Hilda Solis, addressed a meeting of the AFL-CIO Executive Council yesterday where her remarks were met with wild cheers. Pledging to increase enforcement of labor laws against employers and to decrease enforcement of labor laws against unions, Secretary Solis also expressed her complete support for the most undemocratic bill being proposed in Congress this year, the card check bill cynically called the Employee Free Choice Act. Although the Department of Labor does not enforce the National Labor Relations Act, her remarks were met with more wild applause.
Former Supervisor's Comments Can Taint a Legitimate Termination, March 2, 2009
A federal court in Nevada has ruled that an employee can pursue her age and sex discrimination claims, despite evidence that she was fired by unbiased supervisors. The court found that her termination was based, in part, on her prior disciplinary record, which included discipline imposed by a supervisor who allegedly had made sexist and ageist comments. The court found this was sufficient to give the employee a trial. Lanahan v. Southern Nev. Health Dist., No. 2:06-cv-01176 (D. Nev., February 17, 2009).
While it is normally a good idea to rely on a poor disciplinary record to support a termination, this case illustrates the hazard of doing so if the only reason is to bolster a good discharge decision. If the reasons for termination can stand on their own, it is sometimes more prudent not to "pile on" by referring to a disciplinary record that may be tainted by other factors. If the employee would have been terminated without the poor disciplinary record, consider not referring to it at all.
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