The First Monday in October: Supreme Court Roundup
The first Monday in October traditionally marks the beginning of the United States Supreme Court's yearly term - and it provides an excellent opportunity to look at the cases the Court will be hearing this year. In an earlier post, the World of Work brought you detailed discussion of the Court's only Title VII case this term: Lewis v. City of Chicago. Here's a sampling of other labor and employment-related cases to watch for throughout the term:
This morning, in Mohawk Industries, Inc. v. Carpenter, the Court will consider whether an employer's attorney's investigation of an internal complaint is protected by the attorney-client privilege. The internal complaint alleged that the company was conspiring to hire individuals who were not authorized to work in the United States. The case involves a former employee's claim for witness tampering; a separate lawsuit involving the alleged conspiracy is proceeding on a separate track.
On October 7, the Court will hear a case involving the Railway Labor Act. The issue in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers is whether the Seventh Circuit Court of Appeals had the power to overturn, on due process grounds, an arbitration award in the railroad's favor.
On October 14, in Perdue v. Kenny A., the Court will consider whether attorney fee awards under 42 USC 1988 can be enhanced when the lawyer does a particularly good job. Section 1988 is a common basis for fees in employment-related lawsuits.
On December 9, the Court will hear Stolt-Nielsen SA v. AnimalFeeds International. This case asks the Court to decide whether an employee bringing a claim under an arbitration agreement may sue, not only on his own behalf, but on behalf of a class of similarly situated employees. In this case, the arbitration agreement did not specifically allow class claims, but the arbitrators allowed those claims anyway.
Finally, on a date to be announced, the Court will hear Granite Rock Co. v. International Brotherhood of Teamsters. This case again involves questions about arbitration. Here, the issue is whether an arbitrator (not a court) may decide whether a valid collective bargaining agreement exists.
2009 Mid-Term Federal Legislative Update
We expected many changes in federal labor and employment law in 2009 - for the first time in years, Democrats control the White House and both houses of Congress and have the political ability to make significant reforms. However, not much has happened in 2009: we have only significant labor and employment bill signed into law. To be fair, President Obama and the Congress have had other things to worry about: a war or two, a lousy economy, health care and selecting a new White House dog to name a few.
But, the 2009-2010 legislative session is still not over, and Congress may yet pass some of the many labor and employment-related bills still pending. Employers may want to take note, as some of these may become law before the end of the session in 2010. Click on "continue reading" for a complete list.
Click on the bill number to read the full text of each bill.
Passed:
- S. 181: The Lilly Ledbetter Fair Pay Act. President Obama’s first (and so far only) signed employment legislation, this became law on January 29, 2009. It amends Title VII to state that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck.
Still Pending (as of September 23, 2009):
- H.R. 1409, S. 590: The Employee Free Choice Act. As initially proposed, would allow unions to form via card check, impose mandatory mediation/ arbitration of a first contract and increase penalties for unfair labor practices. Compromises in the works include quicker election periods, equal access to employees by unions, and vote-by-mail.
- H.R. 2819, S. 1244: The Breastfeeding Promotion Act. Would guarantee working mothers the right to breast-feed their children at their workplaces.
- H.R. 12, S. 182: The Paycheck Fairness Act. Would require employers to prove that any disparities in pay between male and female employees are job-related, and would prohibit retaliation against employees who inquire about, discuss, or disclose their own wage or that of another employee.
- H.R. 2151, S. 904: The Fair Pay Act. Would amend the FLSA to prohibit employers from paying employees “in a job that is dominated by employees of a particular sex, race or national origin” a lower rate than employees who work in jobs with equivalent “skills, effort, responsibility and working conditions.”
- H.R. 2808, S. 1227: The Truth in Employment Act. Would allow employers to fire union "salts."
- H.R. 2732, S. 1184: The Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act. Collective-bargaining agreements would establish a "floor" for wages, a minimum standard that employees could then exceed for "those workers who go the extra mile."
- H.R. 1668: The Border Control and Accountability Act. Would suspend or debar contractors found to employ unauthorized aliens, and prohibit the Department of Homeland Security from contracting with companies that do not use E-Verify.
- H.R. 1020, S. 931: The Arbitration Fairness Act of 2009. Would amend the Federal Arbitration Act to prohibit mandatory, pre-dispute arbitration agreements in employment.
- H.R. 2570: The Working Adequate Gains for Employment In Services (WAGES) Act. Would amend the FLSA to gradually increase minimum wage for tipped employees up to $5.50/hour or 70% of minimum wage, not counting tip credits.
- H.R. 2564: The Paid Vacation Act of 2009. Would amend the FLSA to require employers with 100 or more employees to provide two weeks of paid vacation/year; employers with 50 or more to provide one week/year.
- H.R. 3017: The Employment Nondiscrimination Act. Would prohibit discrimination against employees on the basis of sexual orientation or gender identity.
- H.R. 3041: The Living American Wage (LAW) Act. Would index the minimum wage to 15 percent above the poverty line for a full-time worker, or about $8.20 per hour in wages, and would increase the minimum wage every four years to maintain a wage at least 15 percent above the poverty line.
- H.R. 3249, S. 1478: The Strengthen and Unite Communities with Civics Education and English Skills (SUCCESS) Act. Would provide subsides of $1000 per employee for businesses that provide English language courses to their employees, tax breaks for teachers who teach English to immigrants, and double funding for English language programs.
Executive Orders: President Obama has also issued four labor-related executive orders. Click on the title of each to read the order:
- Economy in Government Contracting. Denies federal contractors reimbursement for funds spent on activities designed to persuade employees to join or to not join a union.
- Notification of Employee Rights Under Federal Labor Laws. Requires federal contractors to post a notice informing employees that they have a right either to join or to not join a union.
- Nondisplacement of Qualified Workers Under Service Contracts. Requires federal contractors who assumes the contract from a previous contractor to retain that previous contractor's qualified employees.
- Allowance of PLAs. Allows the federal government to require project labor agreements on large-scale federal construction projects.
Online Game Educates on EFCA, Tattooing
We have a favorite new website here at the World of Work: Card Checked: The Game (sorry, failblog.org). Card Checked is an online game where you can play a "young and talented tattoo artist living in America where the Employee Free Choice Act (EFCA) has become the law of the land." As a player, you can dodge union organizers, withstand intimidation from pro-union coworkers, and experience the anguish and horror when union thugs threaten your pet cat, Min Min. (Notably, the game includes links to documentation showing that all of these examples of union organizing tactics are real, even down to threatening pets.)
Card Checked is hosted by the Americans for Tax Reform, a conservative group, and its affiliate, the Alliance for Worker Freedom. While we're not endorsing the politics of these groups, their Card Checked site is creative and informative, and presents accurate information on how union organizing will likely be conducted if EFCA's card check and mandatory aribitration provisions become law. For more on EFCA, click here for the World of Work's EFCA coverage.
U.S. Supreme Court to Hear Six L&E Cases This Term
The U.S. Supreme Court opened its 2008-2009 term on October 6 with six labor and employment law cases on its docket. (For docket information and questions presented, click on the name of the case).
- Locke v. Karass: may a public employee union may charge nonmembers for representational costs for litigation expenses incurred by the international union on behalf of other bargaining units?
- Kennedy v. Plan Administrator for DuPont Savings & Investment Plan: is a qualified domestic relations order (QDRO) is the only valid way under ERISA for a divorcing spouse to waive his or her right to the other spouse's pension benefits?
- Crawford v. Metro. Gov't of Nashville & Davidson County: Is an employee who cooperates with an employer-initiated investigation into alleged unlawful discrimination protected by Title VII's anti-retaliation provisions?
- Ysursa v. Pocatello Education Ass'n: does an Idaho law that prohibits local government employers from allowing employee payroll deductions for political activities violate the First Amendment free speech rights of unions and their members?
- 14 Penn Plaza LLC v. Pyett: do employees covered by a collective bargaining agreement which providies that statutory employment discrimination claims must be pursued through the contractual grievance and arbitration procedures have a right for a court to decide their discrimination claims?
- AT&T Corp. v. Hulteen: must an employer give full service credit for purposes of calculating retirement benefits for pregnancy leaves taken before the Pregnancy Discrimination Act of 1978 if the plan gave full credit for other types of temporary disability leaves?
Some of these cases (such as the Penn Plaza and Crawford cases) have the potential to make significant changes in existing law. Stay tuned to the World of Work for developments as they occur!
Oregon: Arbitration Agreements Need Not Contain Express Waiver of Jury Trial
Late last month, the Oregon Court of Appeals held that an arbitration agreement between an employer and an employee need not contain an express waiver of the employee's right to a jury trial to be enforceable. The opinion can be read here: Hays Group, Inc. v. Biege.
In Hays Group, a trial court denied an employer's motion to compel arbitration of an employee's wage and age discrimination claims on the basis that the arbitration agreement did not contain an express waiver of the right to a jury trial, just a statement that claims would be “settled by final and binding arbitration.” The Court of Appeals reasoned that the employee did knowingly waive his right to a jury trial, given that “[c]laims cannot be settled by ‘final’ and ‘binding’ arbitration except by a waiver of the right to a jury trial.”
This decision gives Oregon employers some added leeway in drafting arbitration agreements. The best practice remains to include an express waiver of the right to a jury trial - there is no harm in including one, and it helps cut off any employee's arguments that he or she did not understand the scope of the agreement.
Oregon employers should also be aware that, pursuant to a new statute effective January 1, 2008, all employee arbitration agreements must be presented in a "written employment offer" that must be "received" by the employee at least two weeks before the first day of the employee's employment. Arbitration agreements may be presented to current employees, but will not be enforced unless entered into at the time of a "bona fide advancement" (such as a promotion).
California Court Upholds One Year Statute of Limitation to Arbitrate FEHA Claim
If you've followed the development of California law on the enforceability of arbitration agreements in the last few years, you know it's complex. And last week, it just got a little more so, although in a way that might be good for employers. In Pearson Dental v. Superior Court, the California Court of Appeal (Second District) enforced an arbitration agreement requiring the employee to bring any claims within one year, despite the "hybrid" two year statute of limitations in California's Fair Employment and Housing Act (FEHA).
The employee sued the employer for violation of FEHA alleging age discrimination and other claims. The employer successfully moved to compel arbitration, and the arbitrator granted the employer's motion for summary judgment on the grounds that arbitration was not requested within one year as required by the arbitration agreement. The trial court vacated the arbitration award, but the Court of Appeal reversed, holding that the one-year statute of limitations did not "unreasonably restrict plaintiff's ability to vindicate his rights under the FEHA." The court noted that the FEHA does not have a "true" two-year statute of limitations, but rather a "hybrid" period, in which the employee must file an administrative complaint within the first year. Thus, the arbitration agreement's one-year limitations period was comparable to the FEHA's one-year administrative complaint deadline.
Does this mean that California courts will be more likely to enforce arbitration agreements? Don't count on it. The court did not spend significant time analyzing the agreement for evidence of either substantive and procedural unconscionability - which are the bases on which many California courts have invalidated arbitration agreements. Nevertheless, the case does give employers some comfort in knowing that a shorter limitations period sometimes may be enforceable. If you want to read up on the complex history of employment arbitration agreements in California, here's what the Attorney General has to say on the topic.
