June 2008 Quick Clips

Fifth Circuit Rejects "Associational" Retaliation Under FMLA, June 16 2008

The Fifth Circuit has rejected an effort to expand FMLA retaliation claims to include retaliation by association with the FMLA user. See Elsensohn v. St. Tammany Parish Sheriff's Office, 2008 U.S. App Lexis 12209 (5th Cir. June 6, 2008). Lawrence Elsensohn, an officer in the St. Tammany Parrish Sheriff’s Department alleged that he was not promoted and assigned to an undesirable shift because of his willingness to testify as a witness in his wife's FMLA case against the Sheriff's office. The appellate court affirmed the lower court’s finding that Elsensohn could not prevail on his claim because the FMLA's retaliation clause only protects those who "participate[] in an [FMLA] investigation, proceeding or litigation."

Elsensohn’s wife had an FMLA claim against the Sheriff’s office, which she settled before trial in 2004. Elsensohn alleged that, while he tried not to "involve himself in his wife's FMLA claim," the Sheriff’s office "knew that if the matter went to trial, [he] would be called as a witness." When bad things happened to Elsensohn in 2005 and 2006, he brought a FMLA retaliation claim against the Sheriff’s office and individual defendants. Elsensohn claimed that his willingness to testify on behalf of his wife (not that he ever did so), is the type of protected activity that is covered by the FMLA.

The Court rejected both the direct retaliation claim, and the associational claim. First, Elsensohn did not provide information about his wife's claim and was not asked to do so. Plus, he claimed that he had tried to "not involve himself in his wife's FMLA claim." Second, said the Court, the FMLA’s retaliation provision applies only when an employee is retaliated against "as a result of testimony he gave or was about to give." But Elsensohn claimed that his retaliation occurred long after his wife's case settled. Third, the Court held that Elsensohn’s assertion that he should be protected because of his association with his wife who did file a FMLA claim would not fly. While some other civil rights statutes do provide for associational retaliation claims(the ADA for instance), the Fifth Circuit has not done so.

2008 Bargaining Data Released By BNA, June 13 2008

by Pat Stewart

The Bureau of National Affairs recently published a report on 2008 collective bargaining results. According to BNA, the average first-year wage increase for all reported settlements was 3.5 percent, compared with 3.6 percent in the same period of 2007; the median first-year increase was 3.2 percent, compared with 3.1 percent in 2007; and the weighted average was 3.3 percent, compared with 2.5 percent in 2007.

Lump-sum payments provided moderate increases in those rates. According to BNA, when including lump sum payments in the calculations, the average first-year increase for all contracts this year to date was 3.8 percent, the median increase was 3.5 percent, and the weighted average was 3.6.

The lowest increases were reported to be with state and local government contracts, which had an average increase of 3.2 percent, including lump sum payments.

NLRB To Change Issuance Of Online Decisions, June 13 2008

by Pat Stewart

The National Labor Relations Board recently announced a pilot project for the electronic issuance and service of final decisions of the Board and its Administrative Law Judges (ALJs). Under current practice, decisions generally are issued at the close of the business day and copies are formally served on the parties (usually by U.S. mail). Three business days later, the decisions are released to the public and posted on the NLRB’s website.

Under the pilot project, the final decisions will be issued electronically at the close of each business day on a daily “docket sheet” posted on the NLRB website. At the same time, parties who voluntarily register for electronic service (“E-Service”) will receive an email notification with a link to the decision. The full text of the decision will be posted on the NLRB website for public viewing at 2:00 p.m. EST on the business day following posting on the docket sheet.

The pilot program will be implemented in two stages, beginning in July 2008. In the first stage, parties with cases pending before the Board or the Division of Judges will receive a mailing from the NLRB with instructions regarding how to register for E-Service if they so choose. The advantage of doing so is obvious. In the second stage, which begins in August, all final Board and ALJ decisions will be issued electronically, with the parties who have signed up for E-Service to receive the email notification and link to the decision in advance of the public release.

Federal Contractors Required To Use E-Verify, June 11 2008

by Pat Stewart

Late last week, President Bush amended Executive Order 12989 to require federal contractors to use an electronic employment eligibility verification system to confirm the eligibility of all individuals hired or assigned by the contractor to perform work in the United States. The amended order does not specifically state whether subcontractors are also required to use an electronic verification system. However, the order does grant rulemaking authority to the Department of Homeland Security (DHS).

Earlier this week, the DHS designated E-Verify as the verification system that all federal contractors must use for compliance with the order. E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds. Agencies responsible for federal contracts have promulgated proposed rules to comply with the amended order. Public comments will be accepted for 60 days.

Court Rules That Pregnancy Discrimination Act Prohibits Abortion Discrimination, June 6 2008

by Eric Paltell

The United States Court of Appeals for the Third Circuit recently ruled that the Pregnancy Discrimination Act prohibits an employer from firing an employee because she underwent an abortion. The decision, Doe v. CARS Protection Plus, Inc., 3rd Cir., No. 06-3625 (May 30, 2008), is a case of first impression, and it is likely to be followed by state and federal courts presented with this issue.

The case arose when the plaintiff, Jane Doe, was fired five days after having a surgical abortion. Ms. Doe decided to have the abortion after learning her baby had severe deformities, resulting in her doctor recommending that the pregnancy be terminated. Ms. Doe's husband phoned her supervisor, and told him about the abortion and requested a week's vacation. The company had no personal or sick leave, and employees received only five days of paid vacation during the first five years of their employment. The company also required employees to call in daily in the event of illness. When neither Ms. Doe nor her husband called for three days after the initial phone call, the company discharged her for failing to follow its leave policy.

Ms. Doe sued for pregnancy discrimination under the Pregnancy Discrimination Act. That law requires that employers treat pregnant employees the same as other temporarily disabled employees. In this case, witness testimony showed that a man who had a heart attack was allowed to take two and one-half days off without calling in, while another employee with a hernia and a back problem was allowed to take three days without calling in every day. The court found these inconsistencies in the way employees were treated to be sufficient to justify sending the case to a jury.

While the outcome of this case was not surprising, it is a good reminder of how bad facts will color a court's decision. The court described the company's leave policies as "less than compassionate," and made note of the fact that Ms. Doe was fired on the same day that her baby was buried. Given those kinds of facts, most courts will delve deeply into the record to find a basis to allow the employee to get their case to a jury.

Supreme Court Permits Retaliation Claims Under Section 1981 And ADEA, June 6 2008

by Eric Paltell

In 2006, the United States Supreme Court expanded the scope of retaliation claims under Title VII of the Civil Rights Act in the Burlington Northern v. Santa Fe Railway Co. v. White case. On May 28, 2008, the Court further expanded protections from retaliation, ruling that claims of retaliation are covered by Section 1981 and the ADEA, even though such claims are not mentioned in either of those statutes.

The Section 1981 case, CBOCS West, Inc. v. Humphries , involved a former assistant manager of a Cracker Barrel restaurant who alleged he was fired because of racial bias. The employee also alleged that he was retaliated against for complaining about a fellow assistant manager who he believed was fired for racial reasons. Although the lower court dismissed his retaliation claims under Section 1981, the United States Court of Appeals for the Seventh Circuit revived the claim, and the Supreme Court agreed with the Seventh Circuit. The Court ruled that the fact that Congress did not include an explicit anti-retaliation provision in Section 1981 was immaterial, and relied heavily upon the fact that courts interpreting Section 1981 since the passage of the Civil Rights Act of 1991 have uniformly interpreted the law to include retaliation actions.

The ADEA case, Gomez-Perez v. Potter , dealt with the federal sector provisions of the ADEA. Ms. Gomez-Perez was a clerk with the U.S. Postal Service in Puerto Rico, and she claimed she was retaliated against by having her work hours reduced after she filed an age discrimination claim. The Supreme Court ruled that the phrase "discrimination based on age" in the ADEA encompasses retaliation claims.

Although the Gomez-Perez ruling is somewhat limited in its application, the Humphries case will be troubling for employers. Unlike Title VII, Section 1981 does not impose any caps on damages. Additionally, Section 1981 has a longer of statute of limitations, generally three years or more. Given that the Supreme Court expanded the scope of conduct which amounts to retaliation in its 2006 White decision, combined with the fact that 1981 claims tend to follow Title VII cases for guidance, employers should expect a surge in retaliation claims. Almost any kind of job action, ranging from a reassignment, a schedule change, or exclusion from training programs, may now give rise to a retaliation claim. As a result, employers need to be especially vigilant in taking actions to protect against such claims.

SEIU Plans To Spend $150 Million On 2008 Elections, June 6 2008

by Eric Paltell

At its national convention this week, the Service Employees International Union (SEIU) announced that it plans to spend 150 million dollars in support of pro-labor candidates in this year's national elections. To pay for the program, each SEIU local will be required to contribute an amount equal to at least $6.00 per member per year -- and that number could be increased next year. The Union is also expecting that at least 20% of each local union's members will contribute an additional $7.00 per month to political activities.

With the influx of cash, the SEIU intends to try to elect candidates who will support the Employee Free Choice Act (EFCA), which would allow unions to organize workers without having a secret ballot election. Union officials call passage of this statute "transformational," and said it would enable them to "organize subcontracted workers, retail chains, shippers, warehouses, and more, state by state, all at the same time." The SEIU predicted that, with passage of the EFCA, they would be able to organize a million or more workers a year, compared to the hundred thousand a year they are presently organizing.

The SEIU's enormous investment into the EFCA demonstrates what a radical change the passage of this legislation would impose upon the workplace. The fact that SEIU estimates that the new law would result in a ten-fold increase in organizing should be incentive enough to get every employer to contact their legislators and urge them to oppose this misguided law!

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