Your Work Email is Not Your Work Email, May 27 2008

by Ken C. Gauvey

It’s a good idea to think before hitting the send button. A recent report has found that more than 40 percent of U.S. companies with more than 20,000 employees have dedicated staff whose sole responsibility is to read other employee’s emails. The report, “Outbound Data and Loss Prevention in Today’s Enterprise,” said that the primary areas of concern for these employers were protecting personal identity information and financial information of consumers, ensuring compliance with financial-disclosure requirements or corporate-governance regulations, and protection of intellectual property.

Racial Slurs Plus Death Threats Do Not Equal Discrimination, May 22 2008

The Third Circuit recently held that two black workers were not victims of racial discrimination in the workplace when their boss waved a shotgun at them, shouted racial epithets, and threatened to kill them. The workers were simply in the wrong place at the wrong time.

On June 30, 2003, two black construction workers, Harris and Alexander, walked in on an argument between the owner of Cobra Construction, Joseph Orlando, and a union business agent. Orlando ordered Harris and Alexander back to work after making racial slurs and a death threat at gunpoint. Harris and Alexander contended that they were forced to leave Cobra Construction shortly thereafter because of individual concern for personal safety. They both filed charges with the Pennsylvania Human Relations Commission, workers' compensation claims, and ultimately sued in federal court under Title VII and Pennsylvania law.

The employer prevailed in the lower court on a motion for summary judgment. On appeal, the Third Circuit affirmed, finding that the death threat and racial slurs were made in the heat of the moment and were not uttered in the context of work performance, hiring, firing, promoting, or demoting. There was no corresponding evidence of racial discrimination in the workplace to support a claim under Title VII or Pennsylvania law. The Court found that Orlando's actions and remarks were a display of "unbridled anger and explosiveness" and had nothing to do with discrimination on the basis of race. Both federal and Pennsylvania law require actual evidence of discriminatory animus in the workplace and do not support a claim when there is only a single incident as there was in this case. The case is Harris v. Cobra Construction, 3d Cir., No. 07-1657, unpublished, April 25, 2008.

Family Health Insurance Coverage Costs Soar, May 21 2008

According to a study released in late April by the private Robert Wood Johnson Foundation, premiums for family health insurance coverage increased dramatically from 2001 through 2005. The average cost to employers and employees rose, on average, 28 and 30 percent, respectively. As costs go up, fewer employees can pay the increased premiums, and fewer employers are able to bear the cost of coverage for their employees. During the four year period, the number of private sector employers nationwide who offered health benefits to their employees fell by 30,000, and over 4 million fewer people worked in private sector jobs that offered health insurance coverage in 2005 than in 2001.

Post Hall Street: First Circuit Reviews for Arbitrator’s Legal Error, May 19 2008

In Hall Street Associates, LLC v. Mattel, Inc., decided in March of 2008, the Supreme Court held that “manifest disregard of the law,” a standard first recognized in Wilco v. Swan, a 1953 decision, is not a valid ground for vacating or modifying an arbitration award under the Federal Arbitration Act (FAA). Expedited judicial review of arbitration awards is available under the FAA, but such review is strictly limited to the grounds expressly enumerated under the Act, and these grounds are very limited and applicable only in the most extreme cases. Review for “manifest disregard of the law,” or legal error based on faulty reasoning, may not be invoked, at least not under the FAA. The Hall Stree decision created some bewilderment as to its effect on the ‘manifest disregard” analysis. Would courts, for example, avoid a “manifest disregard” case by limiting review of arbitration awards only to the most extreme cases under the FAA?

It seems that the answer to the conundrum is relatively simple, as the Hall Stree Court suggested it might be. Do not seek review under the FAA for legal error. Only invoke the FAA for expedited review for the grounds specifically enumerated under the Act. In cases dealing with alleged legal error, look for common law grounds or seek review based on applicable state law, if it exists. A recent First Circuit case makes the point.

In a case decided one month after the Hall Stree decision, Ramos-Santiago v. UPS, the Plaintiff, a twelve year employee of UPS, was terminated when he failed to deliver 37 packages to a single address in a two-day period in 2003. UPS contended that Ramos-Santiago was in violation of the collective bargaining agreement which permits discharge for unauthorized obstruction or interruption of Company operations. The Plaintiff admitted that he committed an “error in judgment” when he “made the decision” not to deliver the packages but filed a grievance for wrongful discharge because UPS allegedly failed to follow the mandated disciplinary procedure. The dispute went to arbitration, and UPS prevailed.

Ramos-Santiago sought review of the arbitration decision in state court, but UPS removed the case to federal court based on a provision in the Labor Management Relations Act and then prevailed on a Motion for Summary Judgment. Ramos-Santiago appealed the lower court decision.

In the appeal, Ramos-Santiago contended that the arbitrator acted in “manifest disregard of the law” by knowingly applying the wrong provision in the collective bargaining agreement. In reviewing the lower court decision, the First Circuit acknowledged the holding of Hall Stree but noted that the case at hand did not invoke the FAA and was originally brought in state court under state grounds. Ramos-Santiago had also invoked the “manifest disregard” analysis under common law, and the Court acknowledged this “very limited exception” for vacating an arbitration decision. In any event, the Court held that the arbitrator’s decision drew its essence from the collective bargaining agreement, and the arbitrator therefore did not act in “manifest disregard of the law.” Ramos-Santiago lost, the FAA was never invoked, and the “manifest disregard” analysis appears, at least in this case, to have survived the Hall Stree decision.

Guns At Work Okay? May 9 2008

by Clifford B. Geiger

On April 15, 2008, Florida’s Governor signed the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008. The law allows Florida employees to keep firearms in their locked vehicles parked at work, provided the employees are properly licensed to carry the weapons. Employers cannot even ask employees or customers whether they have guns in their cars, and they are prohibited from discriminating against employees for keeping guns in their cars. Contractors, volunteers, and interns are considered employees for purposes of the law, which is scheduled to become effective on July 1st. Not all employers are covered. There are exceptions for schools, prisons, nuclear power plants, military facilities, and buildings that store explosives.

Opposition to the new legislation has been mounting over the last few weeks. Employers and business owners contend the law is unconstitutional, because they have a right to set the rules on their own property. They are also concerned about the potential for increased workplace violence, and they argue that the new state law conflicts with their obligation, under the Occupational Safety and Health Act, to provide a workplace free of recognized hazards. Those who support the law, including the National Rifle Association, contend that the constitutional right to bear arms does not end just because someone enters a parking lot.

A New Law Against Discrimination, May 9 2008

by Clifford B. Geiger

President Bush is about to sign into law a bill prohibiting the use of genetic testing information, such a predispositions to certain diseases, to make employment and health insurance decisions. The Genetic Information Nondiscrimination Act, which overwhelmingly passed both houses of Congress, prohibits employers (and employment agencies and labor unions) from discharging, refusing to hire, or otherwise discriminating against employees on the basis of genetic information. Maryland is one the states that already prohibits discrimination on the basis of genetic information.

A User Friendly DOL? May 8 2008

by Darrell R. VanDeusen

The U.S. Department of Labor has announced a new "elaws Advisor" tool called the FirstStep Recordkeeping, Reporting and Notices elaws Advisor. This free interactive website is designed to help employers determine what recordkeeping, reporting and notice requirements apply to them under the DOL enforced laws. By responding to a series of questions, you can simulate a conversation with a DOL expert and obtain information on the requirements of each law.

According to the DOL, this new elaws Advisor has been integrated with the revised and expanded FirstStep Poster and FirstStep Employment Law Overview Advisors. The FirstStep Poster Advisor can be used to download and print DOL for free and has been revised to include information on where the posters must be displayed in the workplace and what size and language requirements apply to each.

The link to the DOL site is www.dol.gov/elaws/firststep.

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