Remote arbitration hearing

Today I’m conducting my first remote arbitration hearing. I had tried to persuade several others to hold remote hearings, but they all declined, preferring to postpone. I finally stopped asking. Then I got word that one company and union wanted to have a remote hearing.

It makes total sense. The lawyers are in two different states, and I’m in a third. Considering the two lawyers, the arbitrator, and the location where the grievance arose, we’re looking at four locations separated by 800 miles. The only losers will be the airlines and the hotels.

Although I have spent a lot of time preparing and practicing, doing something like this gives me the jitters. Wish me luck.

By the way, you can read my Protocol for Remote Hearings here.

And here is a video on Remote Arbitration Hearings: https://youtu.be/Fyx_ZU62yN0

Refund of fair share dues paid pre-Janus is denied. Next stop: Supreme Court.

It's quite rare for an appellant to ask a court to affirm the decision below. Yet that is what happened in Ocol v. Chicago Teachers Union (7th Cir 12/09/2020).

Joseph Ocol is a math teacher in the Chicago public school system. After he was booted out of his union for failure to support a strike in 2016, he kept paying fair-share fees to the union. Those payments were required by the collective bargaining agreement, as authorized by a state statute.

Then the US Supreme Court decided Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), which held that forcing payment of fair share dues violates the constitution.

Ocol sued to get a refund of the dues he had paid prior to Janus, and mounted a First Amendment challenge to exclusive representation. The trial court held against him.

On appeal to the 7th Circuit, Ocol admitted that both claims are squarely foreclosed by precedent and requested that the 7th Circuit summarily affirm judgment in the defendants’ favor so that he may appeal to the Supreme Court.

The 7th Circuit was only too happy to comply. After all, every appellate court that has taken up the question has reached the same answer: A private party acting under color of state law for § 1983 purposes is entitled to a good-faith defense. And, in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Supreme Court rejected a First Amendment challenge to a similar exclusive representation provision applicable to state colleges in Minnesota.

Looks like Ocol will petition for certiorari. My bet is that cert will be denied, mainly because there is no split of authority among the lower courts.

Scabby the Rat might become illegal

NLRB Press Release:

Washington, DC, October 27, 2020 –

In an order issued today, the National Labor Relations Board invited parties and amici to submit briefs in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40. In the underlying case, the Administrative Law Judge found that the union’s stationary display of a 12-foot inflatable rat and two large banners on public property did not constitute picketing or otherwise coercive nonpicketing conduct in violation of Section 8(b)(4) of the National Labor Relations Act. In the notice and invitation to file briefs, the Board seeks public input on the following questions:

1) Should the Board adhere to, modify, or overrule Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)?

2) If you believe the Board should alter its standard for determining what conduct constitutes proscribed picketing under Section 8(b)(4), what should the standard be?

3) If you believe the Board should alter its standard for determining what nonpicketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?

4) Why would finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Chairman Ring and Members Kaplan and Emanuel joined in issuing the notice and invitation; Member McFerran dissented.

Briefs by the parties and amici not exceeding 25 pages in length and briefs by amici not exceeding 20 pages shall be filed with the Board in Washington, DC on or before November 27, 2020, and December 28, 2020, respectively. The parties may file responsive briefs on or before January 11, 2021, which may not exceed 15 pages in length. The parties and amici shall file briefs electronically by going to www.nlrb.gov and clicking on “E-Filing.” If assistance is needed in E-Filing on the Agency’s website, please contact the Office of the Executive Secretary at 202-273-1940.

Uber & Lyft drivers are employees - video

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Uber and Lyft have been preliminarily enjoined from classifying their drivers as independent contractors rather than employees and the California Court of Appeal has affirmed that injunction. The People v. Uber (Cal Ct App 10/22/2020) [PDF].

The California legislature adopted Assembly Bill 5, which adopts the ABC test for determining who’s an employee and who's an independent contractor, and that statute allows the Attorney General to bring a law suit to enjoin violations.

Assembly Bill 5 presumes that workers are employees unless the company can prove A, B, and C, and this case actually involves only the B part which is whether the drivers perform duties that are outside the normal course of business of Uber and Lyft.

Of course Uber and Lyft are saying well look … we're technology platforms, and all we're doing is lining up drivers with passengers. We're not in the transportation business.

And the court took a lot of evidence and they decided that yeah, Uber and Lyft are actually in the transportation business. So their drivers are performing the work of a transportation company.

The Court of Appeal took a look at that preliminary injunction and said Uber and Lyft are very likely to lose on the merits, and it'll be a substantial hardship if the Attorney General can't get this injunction, and when they balance the harms from the standpoint of the defendants and the standpoint of the plaintiffs, it all shook out so that the Attorney General is going to keep that injunction.

Now, what's happened is that the court has put a stay on that injunction until after the November 3d election, and on that election day we have Proposition 22, which would remove Assembly Bill 5 and substitute a whole new classification of workers just for these gig employers. So we'll wait and see what happens on November 3d. Otherwise, Uber and Lyft are going to have to classify their drivers as employees.

Arbitration Boot Camp

Here is the Arbitration Boot Camp collection of videos, designed for for parties and representatives in labor-management arbitrations.

Watch “Selecting Your Arbitrator” video

Watch “Pre-Hearing Preparation” video

Watch “Opening Statement” video

Watch “Cross-Examination” video

Watch “Post-Hearing Briefs” video

Watch “Remote Arbitration Hearings” video

Watch “My First Case” video

ADR Podcast

This podcast discusses litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

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ADR Podcast preview

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Here’s a preview of a podcast discussing litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

The full podcast will be available on September 17, 2020.

7 US Supreme Court cases on employment law (2019-2020)

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During its 2019-2020 term, the US Supreme Court decided seven cases on employment law, including the game-changing decision that Title VII prohibits discrimination because an individual is gay or transgender.

Title VII, gay and transgender employees: An employer who fires an individual merely for being gay or transgender violates Title VII. Bostock v. Clayton County  (6-3).

Ministerial exception: The First Amendment’s Religion Clauses foreclose the adjudica­tion of employment-discrimination claims brought by fifth grade teachers at Catholic schools. Our Lady of Guadalupe School v. Morrissey-Berru (7-2).

ACA Contraceptive mandate: Federal agencies had the authority under the ACA to promulgate religious and moral exemptions to the contraceptive mandate. Little Sisters of the Poor v. Pennsylvania (7-2).

Age discrimination: The ADEA demands that federal personnel actions be untainted by any consideration of age. To obtain reinstatement, dam­ages, or other relief related to the end result of an employment deci­sion, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimi­nation played a lesser part in the decision, other remedies may be ap­propriate. Babb v. Wilkie (8-1).

Causation under 42 USC §1981: A §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains con­stant over the life of the lawsuit. Comcast v. Natl Assoc of African American-Owned Media (9-0).

ERISA statute of limitations: A plaintiff does not necessarily have “actual knowledge” under §1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet §1113(2)’s “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. Intel Corp Committee v. Sulyma (9-0)

ERISA standing: Plan beneficiaries whose benefits are defined lack standing to sue the plan for alleged poor investment of assets. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. Thole v. U.S. Bank (5-4).

VIDEO - Race discrimination in the workplace

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Race discrimination in the workplace is forbidden by federal law, and by the law in most states.

This video gives an overview of race discrimination in employment, and some of the remedies that are available to employee,

NLRB rules on offensive outbursts

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For years, I taught labor law to smart law students and they could never understand why the NLRB would allow employees to use vile language, racial slurs, profanity, sexually inappropriate comments, and give the NLRB’s protection to that kind of language simply because the language was being used in the context of protected activity such as picketing or engaging in a grievance dispute between the employee and management.

Well now, as of July 21, the NLRB has changed the rules. They've now got some common sense.

The opinion: General Motors LLC [PDF].
NLRB press release: [Here]

They're simply going to apply the Wright Line test, which is quite familiar to labor lawyers.

What this means is that the General Counsel, who's the prosecutor for the NLRB, will have to prove that one of the motives that the employer had was to get at the protected activity, and at that point the burden of proof will shift over to the employer to prove that the employer would have disciplined the employee anyway.

So now we have some common sense and the labor students will be able to understand what's going on.

VIDEO - Employment discrimination overview

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All discrimination is not illegal.

Some is legal.

This video discusses what "discrimination" means, and how to tell the difference between legal and illegal discrimination.

5th video in the Employment Law 101 series.

VIDEO - Discharge in violation of public policy

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Discharge in violation of public policy.

This is a concept that's been adopted by many states, but certainly not all States. And within those states that have it there are major differences from one state to another.

Generally speaking, discharge in violation of public policy can involve one of four different scenarios.

One is refusing to violate a statute, for example, refusing to file a false tax return, or refusing to falsify a government required document.

Two would be fired for performing some duty that's required by statute such as showing up for jury duty or honoring a subpoena to go testify as a witness.

Three would be exercising a statutory right such as filing a workers compensation claim.

Four would be reporting illegal conduct by the employer — usually called whistleblowing.

There are major differences from one state to another, so you really need to understand the lay of the land in your state.

1st amendment bars employment discrimination claims by Catholic school teachers

In a 7-2 decision, the United States Supreme Court has decided that employment discrimination claims brought by two school teachers at Catholic grade schools are barred by the 1st amendment. Our Lady of Gua­dalupe School vs. Morrissey-Berru (US Supreme Ct 07/08/2020 [PDF]. I’m reproducing the syllabus here:

1 (Slip Opinion) OCTOBER TERM, 2019 Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-­BERRU

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19–267. Argued May 11, 2020—Decided July 8, 2020*

The First Amendment protects the right of religious institutions “to de­cide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116. Applying this principle, this Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Adopting the so-called “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees, the Court found relevant Perich’s title as a “Minister of Religion, Commissioned,” her educational training, and her respon­sibility to teach religion and participate with students in religious ac­tivities. Id., at 190–191. In these cases, two elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles had teaching responsibilities similar to Perich’s. Agnes Morrissey-Berru taught at Our Lady of Gua­dalupe School (OLG), and Kristen Biel taught at St. James School.Both were employed under nearly identical agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teach­ers’ performance would be reviewed on those bases. Each was also required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, wor­shipped with her students, prayed with her students, and had her per­formance measured on religious bases.

Both teachers sued their schools after their employment was termi­nated. Morrissey-Berru claimed that OLG had demoted her and had failed to renew her contract in order to replace her with a younger teacher in violation of the Age Discrimination in Employment Act of 1967. OLG invoked Hosanna-Tabor’s “ministerial exception” and suc­cessfully moved for summary judgment, but the Ninth Circuit re­versed, holding that Morrissey-Berru did not fall within the exception because she did not have the formal title of “minister,” had limited for­mal religious training, and did not hold herself out publicly as a reli­gious leader. Biel alleged that St. James discharged her because she had requested a leave of absence to obtain breast cancer treatment. Like OLG, St. James obtained summary judgment under the “minis­terial exception.” But the Ninth Circuit reversed, reasoning that Biel lacked Perich’s credentials, religious training, and ministerial back­ground.

Held: The First Amendment’s Religion Clauses foreclose the adjudica­tion of Morrissey-Berru’s and Biel’s employment-discrimination claims. Pp. 10–27.

(a) The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what the Court hastermed “ ‘matters of church government.’ ” Hosanna-Tabor, 565 U. S., at 186. For this reason, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. Pp. 10–11.

(b) When the “ministerial exception” reached this Court in Hosanna-Tabor, the Court looked to precedent and the “background” againstwhich “the First Amendment was adopted,” 565 U. S., at 183, andunanimously recognized that the Religion Clauses foreclose certain employment-discrimination claims brought against religious organiza­tions, id., at 188. Pp. 11–14.

(c) In Hosanna-Tabor, the Court applied the “ministerial exception”but declined “to adopt a rigid formula for deciding when an employeequalifies as a minister.” 565 U. S., at 190. Instead, the Court identi­fied four relevant circumstances of Perich’s employment at an Evan­gelical Lutheran school. First, Perich’s church had given her the title of “minister, with a role distinct from that of most of its members.” Id., at 191. Second, her position “reflected a significant degree of religious training followed by a formal process of commissioning.” Ibid. Third, she “held herself out as a minister of the Church” and claimed certain tax benefits. Id., at 191–192. Fourth, her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” Id., at 192. Pp. 14–16.

(d) A variety of factors may be important in determining whether aparticular position falls within the ministerial exception. The circum­stances that informed the Court’s decision in Hosanna-Tabor were rel­evant because of their relationship to Perich’s “role in conveying the Church’s message and carrying out its mission.” 565 U. S., at 192. But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities thatlie at the very core of a private religious school’s mission. Pp. 16–21.

(e) Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception rec­ognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties, such as educating their stu­dents in the Catholic faith and guiding their students to live their lives in accordance with that faith. Their titles did not include the term “minister” and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employ­ees in the life of the religion in question is important. Pp. 21–22.

(f) The Ninth Circuit mistakenly treated the circumstances the Court found relevant in Hosanna-Tabor as a checklist of items to be assessed and weighed against each other. That rigid test produced a distorted analysis. First, it invested undue significance in the fact thatMorrissey-Berru and Biel did not have clerical titles. Second, it as­signed too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling that Perich. Third, the St. James panelinappropriately diminished the significance of Biel’s duties. Respond­ents would make Hosanna-Tabor’s governing test even more rigid.And they go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a “practicing” member of the religion with which the employer is associ­ated. Deciding such questions risks judicial entanglement in religiousissues. Pp. 22–27.

No. 19–267, 769 Fed. Appx. 460; No. 19–348, 911 F. 3d 603, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. 4 OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-BERRU Syllabus

THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. SO­TOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Video: Employee handbooks - 3rd in the Employment Law 101 series

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This is the 3rd video in the Employment Law 101 series. I’m discussing employee handbooks and policy manuals.

Handbooks and policy manuals can contain a lot of important items.

One huge question is whether the handbooks or manuals become part of the contract between the employer and the employee. And that will determine whether (or not) their provisions are enforceable in court.

Video: Employment contracts – 2nd in the Employment Law 101 series

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Video: Employment contracts – 2nd in the Employment Law 101 series.

This is a discussion of employment contracts, and some of the ways to create exceptions to the employment at-will doctrine.

Of course, you will think of many more items that you might want in an employment contract.