Pacific Coast Labor & Employment Law Conference

February 20, 2020 by Ross Runkel in Collective bargaining, Discrimination, Wage & Hour, US Supreme Court

Consistently excellent labor and employment law program. Pacific Coast Labor & Employment Law Conference in Seattle April 30-May 1.

Here’s the brochure: [PDF]

Website: https://pacificlaborlaw.com/2020-conference/2020-registration

email: registration@pacificlaborlaw.com

Post-shift personal search is compensable time

February 15, 2020 by Ross Runkel in Wage & Hour

[Video] Post-shift personal search is compensable time

Employees can't use employer's email

January 23, 2020 by Ross Runkel in Collective bargaining

[Video] Overruling a 2014 decision, the NLRB is now holding that employees do not have a statutory right to use their employer’s email and other information-technology resources to engage in non-work-related communications.

In other words, employees have no right to use the employer’s email for purposes of union organizing.

Caesars Entertainment, 368 NLRB No. 143 (12/17/2019) [PDF]. Overruling Purple Communications, Inc., 361 NLRB 1050 (2014).

Certiorari granted to review exemptions to Affordable Care Act’s birth control mandate.

January 18, 2020 by Ross Runkel in Constitutional issues, Discrimination, US Supreme Court

The US Supreme Court has granted certiorari to review Little Sisters of the Poor v. Pennsylvania [Briefs] and Trump v. Pennsylvania [Briefs], which deal with the Affordable Care Act’s requirement that employers to provide female employees with health insurance that includes access to certain forms of birth control. In 2013, the government exempted churches and other religious institutions, and provided an “opt-out” process for religious nonprofits. In 2017, the government expanded the exemption to allow private employers with religious or moral objections to opt out.

The rulings now under review (1) affirmed a nationwide injunction of the 2017 rules, (2) held that the government lacked statutory authority under the Patient Protection and Affordable Care Act and the Religious Freedom Restoration Act to expand the exemption, (3) held that adopting the rules violated the Administrative Procedure Act, and (4) held that Little Sisters of the Poor lacked appellate standing.

SCOTUS orders more briefs in federal sector ADEA case

January 18, 2020 by Ross Runkel in Discrimination, US Supreme Court

On January 15 the US Supreme Court heard oral arguments in Babb v. Wilkie [Briefs] [Transcript] [Audio], in which the issue is "Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967, which provides that personnel actions affecting agency employees aged 40 years or older shall be made free from any 'discrimination based on age,' 29 U.S.C. §633a(a), requires a plaintiff to prove that age was a but-for cause of the challenged personnel action."

On January 17 the Court issued the following order:

“The parties are directed to file supplemental letter briefs addressing the following question: What prospective administrative or judicial relief may a federal employee obtain under laws other than the ADEA, including under the civil service laws or the Constitution, against age-related policies, practices, actions, or statements that were not the but-for cause of an adverse employment action against the complaining employee? The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Thursday, January 23, 2020.”

Interesting, to say the least.

No refunds for Janus objectors

January 02, 2020 by Ross Runkel in Collective bargaining, Constitutional issues

[Video]

In Janus v. AFSCME (2018) the US Supreme Court held that it was unconstitutional to compel public sector employees to pay fair share fees to their union. Now the 9th and 7th Circuits have held that the employees cannot recover a refund of payments they made prior to the Janus decision.

NLRB rolling back Obama-era decisions

December 17, 2019 by Ross Runkel in Collective bargaining

Three big NLRB decisions in two days.

Board Restores Employers’ Right to Restrict Use of Email

In a decision issued December 17, 2019, the National Labor Relations Board reestablished the right of an employer to restrict employee use of its email system if it does so on a nondiscriminatory basis. The case is Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143.

The Board last considered the issue presented here in Purple Communications, Inc., 361 NLRB 1050 (2014). There, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. Overruling Purple Communications, the Board today holds that employees do not have a statutory right to use employers’ email and other information-technology (IT) resources to engage in non-work-related communications. Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that in doing so, they do not discriminate against union or other protected concerted communications. To this extent, the Board effectively reinstated the holding of Register Guard, 351 NLRB 1110 (2007). Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.

On August 1, 2018, the Board requested briefing from the public in this case seeking input on whether the Board should adhere to, modify, or overrule Purple Communications. The Board received 19 briefs, which it considered in reaching its decision.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented in part.

Board Approves Greater Confidentiality in Workplace Investigations

In a decision issued December 17, 2019, the National Labor Relations Board held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful. The case, Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), overturns a 2015 decision— Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C. Cir. 2017)—that had required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.

The Board concluded that the framework set forth in Banner Estrella improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee Section 7 rights, contrary to both Supreme Court and Board precedent. The Board also noted that the new standard better aligned with other federal guidance, including EEOC enforcement guidance.

In today’s decision, the Board applied the test for facially neutral workplace rules established in The Boeing Company, 365 NLRB No. 154 (2017), and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful. Because the rules at issue in this case did not limit confidentiality to the duration of the investigation, the majority remanded this case for further consideration.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

Board Restores Longstanding Union Dues Checkoff Rule

In Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019), issued December 16, 2019, the National Labor Relations Board overruled 2015 changes governing dues checkoff obligations when a collective bargaining agreement ends, restoring precedent that had been in place since 1962. The Board held that an employer’s statutory obligation to check off union dues ends upon expiration of the collective-bargaining agreement containing the checkoff provision.

The majority found that dues checkoff provisions belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) of the National Labor Relations Act only for the duration of the contractual obligation created by the parties. In the majority’s view, there is no independent statutory obligation to check off and remit employees’ union dues after the expiration of the collective-bargaining agreement even where the contract does not contain a union-security provision.

This decision overturns Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), and returns Board precedent to the rule established under Bethlehem Steel, 136 NLRB 1500 (1962).

Chairman John F. Ring was joined by Members Marvin Kaplan and William Emanuel in the majority opinion. Member Lauren McFerran dissented.

Double mastectomy, but no ADA disability

December 16, 2019 by Ross Runkel in Discrimination

[Video]

You would think an employee would win an Americans with Disabilities Act lawsuit If she was fired two weeks after having a double mastectomy.

But here's a case where the employee actually did not have breast cancer.

She had the BRCA1 gene mutation, which makes it way much more likely to get breast cancer in the future.

This case went to a federal district court in Ohio and the court said that she's going to lose this case because she cannot show that she has a current limitation of a major life activity.

A future likelihood — Yes, but there's no present disability. So she loses her ADA case.

[I learned about this case from a blog post by Daniel Pasternak at Squire Patton Boggs. He writes for the Employment Law Worldview. Read his interesting thought here: Genetic Mutation Is Not A Disability under the ADA, Says Ohio Federal Court (US).]

Employer must REQUIRE 30 minute meal break

December 06, 2019 by Ross Runkel in Wage & Hour

[Video] An administrative rule in Oregon says certain employers "shall provide" a 30 minute meal break for employees working between six and eight hours.

The Oregon Court of Appeals says this means that if employees work a portion of that 30 minutes, then they are entitled to be paid for the entire 30 minutes. Maza v. Waterford Operations (Oregon Ct App 11/14/2019) [PDF]

Here is what the administrative rule says:

“(1) The purpose of this rule is to prescribe minimum meal periods and rest periods for the preservation of the health of employees.

“(2)(a) Except as otherwise provided in this rule, every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes during which the employee is relieved of all duties.

“(b) Except as otherwise provided in this rule, if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.”

Paul Grossman's Employment Discrimination Law Update

November 29, 2019 by Ross Runkel in Discrimination

Paul Grossman just sent out his 152 page Employment Discrimination Law Update. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Paul's Employment Discrimination Law Update is a supplement to Lindemann, Grossman & Weirich, Employment Discrimination Law (5th ed. 2013), and the 2017 Supplement put out by the ABA Section of Labor and Employment Law (Debra A. Millenson, Laurie E. Leader, and Scott A. Moss, Executive Editors). It is organized by book chapters. The 2017 Supplement includes Court of Appeals decisions through 2016 and some Supreme Court cases issued during the 2016-2017 term. With a few exceptions, the current update begins with cases decided after January 1, 2016. It focuses almost exclusively on Court of Appeals and Supreme Court decisions.

Thank you, Paul.

Is expert testimony required whenever an employee is trying to prove a disability?

November 14, 2019 by Ross Runkel in Discrimination

[Video]

Is expert testimony required whenever an employee is trying to prove a disability?

Maybe. Maybe not.

The 10th Circuit had a case in which the trial court held that expert testimony is required in every single case. And the 10th Circuit reversed. Tesone v. Empire Marketing Strategies (10th Cir 11/08/2019) [PDF].

The court says you have to take a case-by-case look – and it depends upon the type of disability – in order to decide whether or not expert testimony is required.

This was an employee that had a chronic lower back pain.

The court said you will need to have expert testimony when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.”

In this case: maybe not.

Pre-Hearing preparation - Arbitration Boot Camp

November 06, 2019 by Ross Runkel in Arbitration

This is video #3 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

Selecting an Arbitrator - Arbitration Boot Camp

November 04, 2019 by Ross Runkel in Arbitration

This is video #2 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

My First Case - Arbitration Boot Camp

November 02, 2019 by Ross Runkel in Arbitration

This is video #1 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

This 28-second video is admittedly a bit of a puff piece. You can skip it and go to the next five videos, which I hope will be helpful for you.

Dynamex applies retroactively

October 22, 2019 by Ross Runkel in Wage & Hour

Gonzales v. San Gabriel Transit (Cal Ct App 10/08/2019) [PDF] has held that Dynamex Operations West, Inc v. Superior Court (Calif Supreme Ct 04/30/2018) [PDF] applies retroactively to cases that were pending when Dynamex was decided. (Dynamex held that the “ABC test” is to be used to decide whether a worker is an employee or an independent contractor under California wage orders.)

The analysis took one paragraph:

“In any event, there is no reason to conclude that Dynamex departs from the usual rule of retroactive application. Judicial decisions in civil litigation almost uniformly are given retroactive effect and applied to pending litigation. (See e.g., Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 967; Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978; Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 796; Rose v. Hudson (2007) 153 Cal.App.4th 641, 646.) A rare exception is employed in extraordinary circumstances dictated by considerations of fairness and public policy, such as when a decision articulates a new standard or rule of law. (See Rose v. Hudson, supra, 153 Cal.App.4th at p. 653, Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 271.) The instant litigation presents no extraordinary circumstance. Dynamex did not establish a new standard. Rather, its expressly articulated purpose was to streamline the existing complex, multifactor wage order analysis: “In our view, this interpretation of the suffer or permit to work standard is faithful to its history and to the fundamental purpose of the wage orders and will provide greater clarity and consistency, and less opportunity for manipulation, than a test or standard that invariably requires the consideration and weighing of a significant number of disparate factors on a case-by-case basis.” (Dynamex, supra, 4 Cal.5th at p. 964.)”

Meanwhile, the 9th Circuit has certified this question to the California Supreme Court in Vazquez v. Jan-Pro Franchising (9th Cir 09/24/2019) [PDF].