Jottings By An Employer's Lawyer

Monday, April 27, 2009

NLRB to Double with Members Becker & Pearce

President Obama has indicated his intentions to nominate Craig Becker and Mark Pearce as his two Democratic nominees to the National Labor Relations Board. Both have long standing connections with the labor side of the docket. The Washington Labor & Employment Wire, a blog that I don't think I have previously linked to, has the report, Obama Looks to Fill Two NLRB Vacancies with Becker, Pearce, with biographical information on the pair.

When these two are confirmed, which of course may take some time, the Board will be lacking one Republican member. By tradition, the Board consists of three members of the appointing President's party and two of the other.


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Transgendered Workers in the Mainstream Press

Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business. On Tony (formerly Ann) Ferraiolo's first day back,
Madison owner and president Steve Schickler walked in and sat down. "So you're a 'he' now, right?" Schickler asked. Ferraiolo nodded. "Good enough," Schickler said briskly. "I'll let the managers know."

For Schickler, 50, there was no question about what would happen next. Ferraiolo would continue to supervise more than half of the plant's 50 employees. Life would go on as before, with one small difference: Ferraiolo would no longer use the ladies' room.

Besides 'tolerance' the article has some other suggestions on managing the transition.

One interesting note in the article, 322 major companies have added gender identity to their diversity programs. One small mistake is the statement that the first court to recognize protection for transgendered employees under Title VII was a DC District Court case brought by an employee of the Library of Congress last year. In reality that honor goes to the 6th Circuit decision Smith v. City of Salem, almost five years ago, see Transsexual Discrimination - By Definition Sex Stereotyping and Actionable Under Title VII.


Actually, Smith is only the first US Circuit Court to acknowledge the rights of transgender plaintiffs under Title VII. The first federal opinion to do so was in 1983, by Judge Grady of the Northern District of Illinois, in Ulane v. Eastern Airlines, 581 F.Supp. 821 (N.D.Ill. 1983), but his carefully written opinion was reversed by the Seventh Circuit. The first standing opinion on title VII was in 2001, by Judge O'Malley of the Northern District of Ohio, in Doe v. United Financial Services, 2001 WL 34350174 (N.D.Ohio 2001). There were also decisions in favor of transgender plaintiffs in 2000 on statutes similar to Title VII.

In addition to the Sixth Circuit's decision in Smith v. Salem, the First and Ninth Circuits have given indications that they might rule similarly. District courts in the Second , Third , Fifth and Seventh Circuits have ruled in favor of transgender plaintiffs, as has the Federal District Court for the District of Columbia . These developments suggest that “sex” refers to more than the traditional binary distinction of sex that it once connoted. A review of the historical progression of the term “sex” demonstrates that it now includes elements of “gender”. I have an article coming out on this in the fall in the Temple Political and Civil Rights Law Review.

Here's the cases in favor of transgender plaintiffs currently. First Circuit: Rosa v. Park West Bank & Trust Co., 214 F.3d 213, 214-215 (1st Cir. 2000)(non-Title VII case), Second Circuit: Tronetti v. TLC HealthNet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003), Third Circuit: Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D.Conn 2008); Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), lv. to app. den. 2006 WL 986971(W.D.Pa. 2006), Fifth Circuit: Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F.Supp.2d 653 (S.D.Tex.2008), Seventh Circuit: Creed v. Family Express Corp., 2007 WL 2265630 (N.D.Ind. 2007) (distinguishing Ulane), Ninth Circuit: Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)(non-Title VII case), Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D.Ariz. 2004); Fischer v. City of Portland, 2004 WL 2203276 (D.Or. 2004); Sturchio v. Ridge, 2005 WL 1502899 (E.D.Wash. 2005), DC Circuit: Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008).
Also, although Smith involved a transsexual plaintiff, that plaintiff succeeded on a sex-stereotyping claim. And an employee's transsexuality, as the Smith court carefully observed, is irrelevant to a sex-stereotyping claim under Price Waterhouse.

The DC case (Schroer v. Billington) is the first case recognizing protection of a transgender employee in the "sex" class defined by Title VII - that hasn't been reversed or overturned yet.
Excellent list. Thanks for putting it together.

Thanks for your kind words. The article is coming out probably next month: TRANSGENDER IDENTITY, TEXTUALISM, AND THE SUPREME COURT: WHAT IS THE “PLAIN MEANING” OF “SEX” IN TITLE VII OF THE CIVIL RIGHTS ACT OF 1964?, 18 Temp. Pol. & Civ. Rts. L. Rev. 573 (2009)
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Friday, April 24, 2009

It's Not EFCA, Now It's FAN

While the EFCA debate has moved underground for awhile, perhaps the next challenge for employers may be FAN. FAN actually is not the acronym for the act in question, the Arbitration Fairness Act, but rather the Fair Arbitration Now coalition, a group formed to support it. Fair Arbitration Coalition, Website & Blog Announced. Here are links to the blog and to the website.

The bottom line of the Act, which has been introduced as H.R. 1020 is to make pre-dispute agreements to arbitrate employment or consumer disputes invalid. Not all employers will be impacted, but those who have set up alternative dispute resolution programs which culminate in binding arbitration will have those programs blown away by the legislation.

Obviously taking a lesson from the EFCA debates, the proponents are quick to point out that the act does not prohibit arbitration. Technically true, but the fact of the matter is it does prohibit arbitration as a condition of employment, which means as a practical matter, arbitration of employment law claims will be a thing of the past once the bill passes.

Will it pass? I have not seen a lot of handicapping on this one yet, but given that not all employers are impacted and that one of the big proponents of consumer arbitration, also banned, are financial institutions which are not exactly in favor with Congress (or the American public) at the moment, I would have to say the odds are in favor of its passage.


It seems that H.R. 1020, or the Arbitration Fairness Act is going to be congress's answer to the Plaza LLC v. Peyett decision which blew away an individual’s right to have his discrimination claim heard. The Supreme Court, in my opinion, has over stepped its bounds by subjugating an individual’s statutory right to have his claim not only heard in court, but heard at all, by allowing a labor union to have the final say on whether an individuals discrimination claim go to arbitration or not.

It is plainly egregious that a labor union, which has wide discretion over whether or not to pursue a grievance to final binding arbitration, can render a potentially valid individual discrimination claim moot. For the life of me I cannot understand why Justice Kennedy went along with the majority on this one. I surely hope that congress steps in.

And for the record, I am a staunch supporter of organized labor.
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Sunday, April 19, 2009

Congratulations to Jordan Barab, Number 2 at OSHA

I first learned of Jordan Barab by reading his blog, Confined Space. His blog has been dormant since January 24, 2007 when he joined the Committee on Education and Labor working on OSHA related legislation. You can see my comments on the shut down of his blog at A Tremendous Loss - Confined Space Closes Shop.

Last week, Barab was named Deputy Assistant Secretary for OSHA, and until a permanent OSHA Director is named, he will also be filling that role. See House Aide Jordan Barab Named Acting Head of OSHA.

I actually got to meet Jordan the last week of February at a seminar where we were both speaking. I know workplace safety is something that he is passionate about. He has always been a strong and vigorous advocate, but now moves even more to the center of the action.

Others have been quick to sing his praise, see quotes from the AFL-CIO's director of safety and health, Peg Seminario and the Chair of the House Committee where he has been working, Rep. George Miller, here. And from the blogosphere, Effect Measure, titles it a Miracle at OSHA.

Best of luck in a challenging position.


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Friday, April 17, 2009

9th Circuit Joins 6th on Transgender Cases

Although normally the 9th Circuit is the trend setter on new trends in labor and employment law, in Kastl v. Maricopa County Community College Dist.(9th Cir. 4/14/09) [pdf] it found itself following the 6th Circuit's 2004 decision that transgendered employees can state a claim under Title VII on a sex stereotyping theory.

In Kastl it was a male to female employee who was barred from using the female restroom. Interestingly, although it held she could state a claim under Title VII, summary judgment for the employer was upheld because she was unable to rebut the employer's articulated business reason. That may be why the decision was unpublished.

Hat tip to the folks at Alaska Employment Law for catching this development.


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Texas Law of Covenant Not to Compete Takes Another Step Forward

Anyone who has dealt with the law of non-compete agreements in Texas is aware of a tangled history that grew out of a battle between the legislature and the Supreme Court and culminated in the now infamous decision of Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642 (Tex. 1994). It was a dozen years later before the Supreme Court in its Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), untangled some of the issues caused by Light and took a step in refocusing the debate in covenants not to compete onto the reasonability of covenants as opposed to what it referred to as "overly technical disputes".

Today, the Supreme Court takes another wording dispute and removes it from the mix. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding (Tex.. 4/17/09) the Court dealt with a covenant in an at-will contract where the employee promised not to disclose confidential information, but there was no explicit promise to provide confidential information by the employer. In short, enforceable:

We hold that if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.

The Court ducked another issue -- whether or not the covenant not to compete statute pre-empts attorneys fees under the Declaratory Judgment Act. Here, the employee filed a declaratory judgment action, got a favorable ruling that the covenant was not enforceable, and was awarded his attorneys fees. Since the Court reversed the underlying favorable ruling, the basis for the attorneys fee award went away, and the Supreme Court did not provide any indication of how it would rule when the case is presented.


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Wednesday, April 08, 2009

EFCA Road in This Congress Keeps Getting Tougher

Yesterday, as I was posting my view that without compromise on Labor's part EFCA was dead for this Congress, Campaign Diaries was gathering the data to back me up. In their post, Updated Headcount on EFCA they have a modicum of good news for supporters of EFCA in that Senator Udall (D- CO) and Senator Warner (D - VA) have both indicated they will vote for cloture, while withholding opinions on the bill itself. Cloture of course is the key and so that's a pro-EFCA position.

On the other hand, the other new Colorado senator, Michael Bennet stressed strong reservations about the bill's viability and his concern that it will prove divisive and get it in the way of health care reform, which he clearly places ahead of EFCA.

The final total on their tally sheet is 46 supporters, 12 undecided/uncommitted, 5 who oppose the current version but have not closed the door to compromise and 36 opponents, which is where they now have Sen Specter of Pennsylvania.

In an update to their original post, one of the 5 they say Senator Voinovich of Ohio, appears to be in the opponent category, meaning the road is that much bleaker.

Still it's only April of the first session of the 111th Congress, and giving the blitz labor is putting on during this two week Congressional break it would appear that they have not yet folded their tents.

If all the above is accurate, it is hard to see how that means anything but that people should start examining the pro's and con's of compromise. Notice that is not the same thing as the merits of any particular compromise. As I said yesterday, the first real decision, for both sides, is whether this is one where compromise is desirable, even if it were to prove possible.

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Warner's cloture vote is questionable now:
Still think Specter is the 60th vote?

I guess you had no basis to think I knew what I was talking about. Maybe Google my name and "democrat." I'm surprised about Kohl, but the local locals had been having anxiety about DiFi ever since it became clear Obama would win and the Senate had control. Having said that, the only one I *knew* was gonna change her mind was Lincoln, but sturm and drang over Specter was always a hallucination.
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Tuesday, April 07, 2009

EFCA - A View From the Field By Supporters

The BeyondChron, a San Francisco alternative newspaper has an interesting article by Randy Shaw, The Obama/Progressive Agenda: A Progress Report, that focuses on the fate of three progressive items -- health care, immigration reform and EFCA. It's his view on the latter that is of most interest here.

His reporting is that the "almost universal belief" among labor activists is that framing the argument in favor of EFCA around the "right of workers to avoid secret ballot provisions," has turned out not to be a winner.

If that is true, and everything I see makes me agree that it makes sense, Shaw poses and answers the logical question:

”Why is labor continuing to frame the EFCA debate in a way that its own base feels makes no strategic sense? It could be that labor lacks a decision-making process to change course.

SEIU’s Andy Stern is the nation’s most politically influential labor leader. But his Change to Win labor federation is disintegrating, he is in outright warfare with John Wilhelm of HERE, and he is not in a position to sit down with other union heads –particularly those with the AFL-CIO – and work out a new campaign plan.

Shaw's hope is that the two primary legislative sponsors, Senator Harkin and/or Representative George Miller will take the lead in initiating a new plan.

In many ways EFCA is a great poker game. Both organized labor and the business opposition so far have been saying that there is no compromise on this issue. It is all or nothing. If the poker game is only the 111th Congress, then organized labor's continued statement of this position is nothing more than a bluff.

It would be the irony of all ironies if the labor movement were to founder in achieving substantive labor law reform because of internal fighting.


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Monday, April 06, 2009

MDV - Same Story, How Many Verses?

From the pages of the LA Times comes another MDV report of a public agency, sued by a still current employee for harassment and retaliation for reporting it. This time it was the LA Police Department, Jury awards $2.3 million in LAPD harassment case.

Melissa Borck complained of numerous obscene gestures and comments, many of them around a pregnancy that resulted in a still born birth of her son. That emotional element clearly added to the emotional issue that was presented to the jury. The jury award was $1 million in economic damages and $1.3 million in non-economic damages, including mental anguish.

Although it is always hard to tell everything from a news report, it appears that the LAPD was in one of those difficult positions, where it thought it had a legal defense, fail to timely file, but must not have been able to win that point on summary judgment. Since if you can't win on summary judgment the only way to test it is after a jury verdict, that can make for a very difficult decision. How strongly do I feel about my legal point? In this case, if in fact that was the decision making process that occurred, the answer is potentially, $2 million dollars plus.


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Thursday, April 02, 2009

Mom of Triplets and Family Responsibility Discrimination in 1st Circuit

Last week the 1st Circuit reversed a summary judgment holding that a mother of triplets had made a sufficient case to go to trial on her charge that she was not selected for a promotion, given to another woman, because the employer applied a stereotype against working mothers. Chadwick v. Wellpoint, Inc. (1st Cir. 3/26/09).

Three comments made by the employer, and contradictory explanations as to why she did not get the position, were enough to convince the Court to send it back to trial. The comments:
  1. Two months before the promotion decision was made, the decision maker found out that Chadwick was the mother of three six year olds and sent her an email saying, ""Oh my -- I did not know you had triplets. Bless you!" (A sentiment that most of us would probably share!)
  2. During an interview for the position, Chadwick was asked what she would do if an associate did not complete a project on time, and apparently unhappy with her answer, the interviewer responded: "Laurie, you are a mother. Would you let your kids off the hook that easy if they made a mess in their room? Would you clean it or hold them accountable?" ; and
  3. In the interview, Chadwick was told, ""if [the three interviewers] were in your position, they would feel overwhelmed."

Interestingly, not only was the person selected female, but she was also a mother of two, ages nine and fourteen. (Chadwick had not only the six year old triplets, but also an eleven year old.) The appellate court gave that claim short shrift.

Working mothers everywhere should take comfort in the view expressed by the Court:

In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities. It is undoubtedly true that if the work performance of a woman (or a man, for that matter) actually suffers due to childcare responsibilities (or due to any other personal obligation or interest), an employer is free to respond accordingly, at least without incurring liability under Title VII. However, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.

The appeals court did affirm the trial court's decision not to allow expert testimony on sexual stereotyping because the expert did not relate it to the specific individuals. That view is critiqued at Judicial Flubber at the Feminist Law Professors blog.


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Wednesday, April 01, 2009

Employers Win Arbitration Case In Supreme Court, But Watch Out for Congress

In one of the few employment law cases on this year's docket, the Supreme Court today came close, but according to the majority, did not technically overrule one of its oldest precedents under Title VII, Alexander v. Gardner Denver (1974). (It is so old it pre-dates my passage of the bar by one year!)

In 14 Penn Plaza LLC v. Pyett (4/1/09) (pdf) Justice Thomas wrote for the majority in a 5-4 decision, holding a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act is enforceable. Justice Souter wrote a vigorous dissent, joined by Justices Stevens (who added his own dissenting opinion), Ginsberg and Breyer.

Much of the battle between Justice Thomas and Justice Souter is carried out in the footnotes, which is where in footnote 8, Justice Thomas delivered probably the best summary of today's opinion:

Because today’s decision does not contradict the holding of Gardner-Denver, we need not resolve the stare decisis concerns raised by the dissenting opinions. But given the development of this Court’s arbitration jurisprudence in the intervening years, see infra, at 16–19, Gardner-Denver would appear to be a strong candidate for overruling if the dissents’ broad view of its holding, were correct. See Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989) (explaining that it is appropriate to overrule adecision where there "has been [an] intervening development of the law" such that the earlier "decision [is] irreconcilable with competing legal doctrines and policies"). [internal cites to today's opinions omitted]

In order for this opinion to have an impact on any individual it would require that an employee be a member of a bargaining unit that has explicitly agreed that discrimination claims would be arbitrated rather than tried in court. Given the well documented decline in union membership, and the lack of such clauses in a large number of union contracts, the actual number of individuals is probably not all that great.

Of more immediate interest is how this case may be played out in the discussion of two pieces of potential legislation. First, EFCA opponents will use it to argue that it is another reason why it is important that employees retain the secret ballot, since they are electing a representative with the power to strip them of their right to have discrimination claims heard in court. Although I anticipate it will be used, I don't think it will have any great impact in that debate.

More significantly, I think this gives a shot in the arm to the Arbitration Fairness Act, which so far has not drawn a lot of attention. Here's the substance of that proposal:
No predispute arbitration agreement shall be valid or enforceable if it requires arbitration of--

(1) an employment, consumer, or franchise dispute; or

(2) a dispute arising under any statute intended to protect civil rights.

(c) An issue as to whether this chapter applies to an arbitration agreement shall be determined by Federal law. Except as otherwise provided in this chapter, the validity or enforceability of an agreement to arbitrate shall be determined by the court, rather than the arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

By precluding pre-dispute agreements, the Act would effectively kill arbitration of employment law disputes. Given today's result in 14 Penn Plaza, my guess is that the Arbitration Fairness Act will begin to get attention and pick up attraction, it will probably be revised to make it clear that it applies to a union waiver as well, so that today's opinion would effectively be overruled. That will have a tremendous impact on employers who have established mandatory arbitration programs.

Similar to the decision that led to the Lilly Ledbetter Act, today's ruling may turn out to be a very short term, if not Pyrrhic, victory for the business community.


From your mouth to God's ears. Arbitration has gotten so out of hand, it's time for Congress to step in.
Kudos, Mr. Fox, for a timely and insightful analysis.
It's interesting that the Arbitration Fairness Act of 2009 (H.R. 1020) specifically excludes arbitration provisions in collective bargaining agreements from its ban on predispute arbitration agreements -- a clear sign that its sponsors read Alexander v. Gardner-Denver as did the dissenters in Pyett rather than the majority. That section of the bill will surely be revised.
Great, subtle analysis, as usual. You may be right that this might be a redux of the legislative overturning of the Ledbetter Goodyear decision. If that occurs, one can't help but wonder if this Supreme Court needs a little reining in.
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