September New Developments

NLRB Modifies Approach for Union "Salts"

The NLRB has permitted union organizers to apply for work at companies and file unfair labor practice charges seeking backpay if they are illegally not hired. This concept is called "salting." The NLRB has defined salting as "the act of a trade union in sending in a union member or members to an unorganized jobsite to obtain employment and then organize the employees." The NLRB pointed out that in many instances an individual who applies for work in such a circumstance does so pursuant to a good faith interest in accepting a job. In some instances, however, it has become apparent to the NLRB that an applicant has no such interest. In this matter, the NLRB established a new standard for defining when an applicant is entitled to the protections of the National Labor Relations Act when he or she is applying for a job. Also, the NLRB imposed a new burden on the prosecutor to establish that an applicant truly has a genuine interest in securing employment. 

In this matter, eighteen resumes of applicants where submitted by a union in response to an advertisement in the newspaper. Of the eighteen resumes submitted, five contained no work history dates and another five were stale. The Company argued to the NLRB that the union had submitted these resumes as part of a "salting" campaign to manufacture unfair labor practice charges and to enmesh the Company in costly litigation that would eliminate any competitive advantage this non-union contractor would have over union contractors. The NLRB judge rejected the Company argument and found that the Company had violated the law in not hiring the eighteen applicants. The NLRB majority refused to enforce the judge's decision and instead remanded the case back to the judge to determine the applicants' actual interest in going to work for the Company. The Labor Board announced that an employer must have the ability to contest the genuineness of the applications by presenting evidence on the following: 

Evidence that the individual refused similar employment with the respondent employer in the recent past; incorporated belligerent or offensive comments on his or her application; engaged in disruptive, insulting, or antagonistic behavior during the application process; or engaged in other conduct inconsistent with a genuine interest in employment. Similarly, evidence that the application is stale or incomplete may, depending upon the circumstances, indicate that the applicant does not genuinely seek to establish an employment relationship with the employer.(Toering Electric Company, 351 NLRB No. 18)

In another case involving "salts," the NLRB discussed their traditional remedy of backpay and reinstatement for a company's refusal to hire a union organizer. The NLRB had previously allowed backpay to continue indefinitely from the date of the discriminatory refusal to hire until a valid offer of reinstatement had been made. The NLRB held that unlike other applicants for employment, salts often do not seek employment for an indefinite duration; instead, many salts intend to remain with the targeted employer only until the union's objectives are achieved or abandoned. The NLRB, by a vote of 3-2, held that it will no longer apply a presumption that a salt would have remained on the job indefinitely, but instead will now require affirmative evidence that the salt, if hired, would have worked for the employer for the full period of backpay sought. Evidence will now include the salt's personal circumstances, contemporaneous union policies and practices with respect to other salting campaigns, specific plans for the targeted employer, instructions or agreements between the salt and the union concerning the anticipated duration of the assignment, and historical data regarding the duration of employment of the salt and other salts in similar salting campaigns. (Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118)

Recent U.S. Supreme Court decision concerning Age Discrimination

On June 19, 2008, in the case of Meacham v. Knolls Atomic-Power Laboratory, the United States Supreme Court held that the employer has the burden of persuading the fact finder in an age discrimination lawsuit that an employment practice with a disparate impact on older workers was "based on reasonable factors other than age." This decision makes it easier for workers to bring claims against their employers for age discrimination.

 

The case involved an employer, Knolls Atomic-Power Laboratory, laying off 31 workers as a result of budget cuts at its facility. When the federal government ordered Knolls to reduce its workforce, Knolls had its managers rate their subordinates on "performance," "flexibility," and "critical skills;" these scores, along with points for years of service, were used to determine who was laid off. All but one of the laid off employees were over the age of 40 and the laid-off employees brought an action under the Age Discrimination in Employment Act (ADEA). Under ADEA, prohibited employment practices include practices that have a disparate impact on older workers. However, the law also provides a defense that the employment practice or decision was based on "reasonable factors other than age."In this case, Knolls had provided a defense that its layoff decisions were based on factors other than age, namely, the aforementioned criteria, and the Supreme Court held that Knolls had the burden of persuading the jury of this defense.  

Review of Employees’ Text Messages - Invasion of Privacy

In June 2008, the Ninth Circuit Court of Appeals addressed an employer’s ability to read employees’ text messages sent through a pager service provided by an outside provider in Quon v. Arch Wireless. In this case, the employer, a police department, obtained transcripts from the pager service provider of an employee’s text messages, which were sent and received from a pager provided by the police department. The employee later sued the employer and the provider for violation of his privacy rights under federal and state law. The Court held that the employer’s review of transcripts constituted a violation of his privacy rights under the Fourth Amendment and California Law. Importantly, the police department did not have an official policy addressing the use of its pagers and the expectation of privacy and never sought the consent of its employees to review text messages.  

Retaliation under 42 U.S.C. § 1981

42 U.S.C. §1981 prohibits discrimination in the "making and enforcing of contracts" on the basis of race. This post Civil War statute has been subject to a liberal construction and the phrase "making and enforcing contracts" and the term "race" have been broadly defined. For example, §1981 claims may be brought by at-will employees, not just employees with employment contracts. Likewise, claims for discrimination based on national origin, alienage and ethnicity may be brought under this statute. Importantly, unlike Title VII, this statute does not require a threshold number of employees to be applicable to an employer.

In May 2008, the Supreme Court further expanded the interpretation of §1981 and held that it includes a claim for retaliation for complaints about racial discrimination even though the statute does not expressly include the term retaliation. Accordingly, a plaintiff, who was barred from bringing an action under Title VII because of procedural deficiencies, could still bring his retaliation claim under § 1981. (CBOCS West, Inc. v. Humphries).

Application of Burlington Northern New Retaliation Standard

In the beginning of the 2006 Supreme Court term, the Court decided the case of Burlington Northern & Santa Fe Ry. v. White, adopting a new definition of retaliation which is much broader than the definition of discrimination. The Supreme Court held that (1) the anti-retaliation provision of Title VII, unlike the discrimination provision, was not limited to discriminatory actions that affected the terms and conditions of employment, and (2) the employee needed to show that a reasonable employee would have found the retaliatory action was bad enough that it would tend to discourage the reasonable employee from complaining about discrimination.

In Burlington, after the Plaintiff complained about the allegedly discriminatory comments of her foreman, the foreman was suspended for ten days. However, the Plaintiff was also removed from her forklift duty job and assigned solely to the track laborer tasks such as replacing track components, cutting brush and clearing litter by the track. She received the same pay, but she had to do dirtier work. Additionally, after the filing of a Charge of Discrimination, she was later suspended without pay for 37 days because of her alleged insubordination. The Plaitniff challenged this suspension and it was later rescinded.

The Supreme Court found that there was enough evidence to support the jury's verdict in the trial court for the Plaintiff on her retaliation claim because (1) a jury could reasonably conclude that the reassignment of responsibilities would have been enough of an adverse action to cause a reasonable employee not to complain, even though the former and present duties fell within the same job description, and (2) it was reasonable for the jury to conclude that the 37-day suspension without pay was materially adverse, even though the suspension had been rescinded.  

One of the first Circuit Courts to discuss this standard was the Third Circuit in its decision of Sykes v. Pennsylvania State Police, where an African-American female employee brought an action under Title VII, 42 U.S.C. §1981 and § 1983 for discrimination and retaliation on the basis of race. The Plaintiff alleged that a hostile work environment was created by discriminatory comments and behavior. She also claimed that she was retaliated against after she complained about this discrimination. Specifically, she stated that she was given lower scores on her performance evaluations and she was dissuaded and prevented from making additional charges of discrimination in retaliation for making her complaints.

The court rejected the Plaintiff’s claim that she was treated differently because of her race. Likewise, the court also determined that the Plaintiff did not have a claim for retaliation under application of the Burlington Northern standard. The court noted that none of the alleged retaliatory actions by the employer deterred the Plaintiff from continuing to complain about the alleged discrimination. The court relied on Burlington Northern’s discussion that an employee needed to show that a reasonable employee would have considered the retaliatory action to be bad enough to discourage the reasonable employee from complaining about discrimination. 

The Eleventh Circuit Court of Appeals addressed the Burlington Northern standard in May 2008 in the case of James Bothwell v. RMC Ewewll, Inc. The Plaintiff in Bothwell brought a claim for discrimination and retaliation under the Age Discrimination in Employment Act and under the Florida Civil Rights Act. The Eleventh Circuit affirmed the lower court’s decision holding that the Plaintiff failed to provide sufficient evidence to support his claims.

As evidence of his claim of retaliation, the Plaintiff had, in part, cited a comment of the President of the Company after receiving a letter from the Plaintiff’s attorney stating that he believed decisions concerning the Plaintiff’s employment were based on the Plaintiff’s age. In response, the President told the Plaintiff that he had "lost all respect" for the Plaintiff because of this letter. The Eleventh Circuit held that this comment alone did not constitute an adverse action as this "was not an action a reasonable employee would find to be materially adverse" and "petty slights, minor annoyances, and simple lack of good manners are typically not enough to support a retaliation claim."

Florida’s Domestic and Sexual Violence Leave Act

Effective July 1, 2007, Florida law (§ 741.313, F.S.) requires every Florida employer who is an employer under state workers compensation law and who employs at least 50 employees to provide up to 3 working days of leave in any 12-month period for victims of domestic violence. The act was amended to include victims of "sexual violence" to its protections. Sexual violence is defined by reference to Florida criminal law. This amendment has an effective date of July 1, 2008.

Every employee who has worked for the employer for at least 3 months prior to the requested leave is eligible. Leave is available for the employee if the employee or a family or household member has been a victim of domestic or sexual violence and such leave is needed to: 1) seek an injunction for protection against domestic violence, dating violence or sexual violence; 2) obtain medical care or mental health counseling to address physical or psychological injuries resulting from an act of domestic or sexual violence; 3) obtain services from a victim-services organization, including a shelter or rape crisis center; 4) make the employee's home secure from the perpetrator or seek new housing to escape the perpetrator; or 5) seek legal assistance in addressing issues arising from the domestic or sexual violence or to attend and prepare for court-related proceedings.

The leave may be with or without pay, at the discretion of the employer. The employer is entitled to reasonable advance notice of the need for leave, except in cases of imminent danger to the health or safety of the employee, family or household member. The employer also is entitled to sufficient documentation of the act that led to the request for leave. An employee seeking leave must exhaust all annual or vacation leave, personal or sick leave, which is available to the employee, unless the employer waives this requirement. All information relating to the leave must be kept confidential and employees are protected from retaliation for exercising their rights to leave under the new law. Violations can be pursued in a civil suit in circuit court.New Military Family Leave provisions of the Family and Medical Leave Act (FMLA)  In January 2008, the Family Medical Leave Act (FMLA) was amended for the first time since its enactment in 1993. The Amendments expanded the provisions of FMLA for employees in military families by providing a new leave entitlement and expanding the length of leave to care for a military service member.

The Act now provides that:

An eligible employee may take up to 12 weeks of unpaid leave in a 12-month period for "qualifying exigencies" arising out of the active duty status of the employee’s spouse, child or parent.

An eligible employee may take up to 26 weeks of unpaid leave in a 12-month period to care for a covered service member recovering from a serious illness or injury. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave.

The provision concerning leave to care for a covered service member went into effect on January 28, 2008. However, the provision concerning leave for a "qualifying exigency" will not be enforced until the Department of Labor issues final regulations defining a "qualifying exigency."Earlier this year, the Department of Labor sought comments concerning the proposed regulations defining "qualifying exigencies" and listed several possible types of exigencies under the statute including: making arrangements for child care; making financial and legal arrangements to address the service member’s absence; and attending to affairs caused by the missing status or death of a service member.  

Genetic Information Nondiscrimination Act of 2008 ("GINA")

On May 21, 2008, the Genetic Information Nondiscrimination Act ("GINA") was signed into law by President Bush in an effort to encourage Americans to take advantage of genetic testing. The federal law is intended to prevent discrimination by employers and insurance companies on the basis of genetic information.

The Act prohibits employers from considering an individual’s genetic information when making decisions concerning hiring, firing, promotions or job placement. The Act also prevents group health plans and health insurers from denying coverage to individuals or charging higher premiums based solely on the fact that an individual is genetically predisposed to a disease.

The Act covers employees and applicants of private employers with 15 or more employees, like Title VII of the Civil Rights Act, as well as specified employees of the federal government. Damages recoverable under the Act are the same as the damages provided by Title VII.

"GINA" Amends FLSA Child Labor Provisions

GINA also amended the provisions of the Fair Labor Standards Act related to Child Labor Violations. The FLSA now provides that an employer may be penalized up to $50,000 for the death or serious injury of an employee under the age of 18 and that this penalty may be doubled if the violation is repeated or willful. Likewise, the Act also raised the penalties for other violations of child labor rules, to $11,000 per worker, and the penalties for repeated or willful violations of minimum wage and overtime provisions, to $1,100 per violation.

Florida’s New Gun Law - §790.251, F.S.

In April 2008, the Florida Legislature passed a law ("Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 208") prohibiting most Florida employers from asking whether an employee has a concealed weapon permit; prohibiting an employee with a concealed weapon permit from keeping a legal firearm in his locked vehicle in the employer’s parking lot; or discriminating against an employee for exercising his rights under the Act - - provided the legal firearm is never exhibited on company property for any reason other than lawful defensive purposes. The Act exempts some employers, including for example, hospitals, schools, prisons and nuclear power plants.

The law went into effect July 1, 2008. Immediately after the passage of the Act, the Florida Retail Federation and the Florida Chamber of Commerce filed a lawsuit in federal court in Tallahassee challenging the law, including seeking a preliminary injunction. The principal assertions of the plaintiffs are that the new law is unconstitutional and that it violates the Occupational Safety & Health Act. On July 28, 2008, the Court ruled that the Attorney General was enjoined from enforcing those portions of the law that address an employer’s treatment of customers or invitees. The Court left standing those portions of the statute that address an employer’s treatment of employees as defined in the statute, that is, an individual who has a valid Florida permit to carry a concealed weapon. The future of this litigation remains uncertain.Federal Government’s E-Verify Program

The U.S. Citizenship and Immigration Services operates an internet-based system that allows employers to verify electronically the employment eligibility of their newly hired employees and the validity of newly hired employees’ social security numbers. Certain federal contractors are mandated to subscribe to E-Verify. The program can be accessed at www.uscis.gov/E-Verify.  

Cell Phone Usage While Driving

A number of states, including California, Washington, New York, Washington, D.C., Connecticut, New Jersey and Utah, ban the use of hand-held cell phones while driving. Seventeen states ban or restrict cell phone use by teenage drivers. To date, Florida has not enacted such a law. 

Of growing concern is the issue of corporate liability when an employee causes an accident while driving and talking on a cell phone. ExxonMobil and Shell Oil are among the large companies that ban employees’ use of any type of cell phone while driving during working hours. Employers may be found liable if they fail to implement and enforce a policy for the safe use of cell phones when employees are driving. It is noteworthy that in December 2007, International Paper Company, as part of a settlement of a claim, agreed to $5.2 million dollars to an individual whose vehicle was rear-ended by one of the company’s employees who was talking ona cell phone. International Paper agreed to resolve and settle the claim even though the employee had violated a company policy requiring hands-free headsets to be used while driving. 

Changes to Federal and State Minimum Wage Rates

Florida’s minimum wage is $6.79 per hour, effective January 1, 2008. Florida law requires the Agency for Workforce Innovation to calculate a new minimum wage rate each year and publish the new minimum wage on January 1^st.

The federal minimum wage is currently $ 5.85 per hour. However, this rate will increase on July 24, 2008, to $6.55 per hour, and then again on July 24, 2009, to $7.25 per hour.