Cross-posted at EFCA Updates.

Regular readers of our blogs are familiar with the RICO suits filed by Wackenhut, Smithfield Foods and Cintas against various labor unions engaged in Corporate Campaigns against the companies.    The July 2008 edition of CRC’s “Labor Watch” provides an overview of these suits: “RICO Suits: Employers Fight Back Against Union Smear Campaigns.”  Kilpatrick Stockton’s Seth Borden is quoted throughout the piece:

“The formal papers in these cases all do a fantastic, detailed job of illustrating the horrors of the typical union corporate campaign,” says Borden. “The alleged racketeering activity at issue in all the cases contains common elements such as the creation of surrogate organizations to spread negative publicity about the employer, the publication of reports and cleverly disguised websites disparaging the employer, exploitation of other social, political and commercial interests adverse to the employer, filing and publicizing frivolous legal claims and many other tactics.”

For more information on Corporate Campaigns, and the related RICO litigation, read the entire article here. 

The GAO conclusion:

Case studies show that WHD inadequately investigated complaints from low-wage and minimum wage workers alleging that employers failed to pay the federal minimum wage, required overtime, and failed to issue a last paycheck. In the majority of the case studies, low-wage complainants were advised of their option to hire an attorney after WHD determined no action would be taken on their behalf.

Read the rest of the report here.

The House Judiciary Committee's Subcommittee on the Commercial and Administrative Law is scheduled to mark up H.R. 3010, the Arbitration Fairness Act of 2007, at 12:30 p.m. on Tuesday, July 15, 2008. The Act, introduced last year by Rep. Henry Johnson (D-GA), has 95 co-sponsors, and an identical bill has been introduced in the Senate (S. 1781).

The Act would invalidate any predispute arbitration agreement in employment, consumer, or franchise disputes, or statutory civil rights claims.  Moreover, it would take the issue of arbitrability away from arbitrators and place it before federal courts.  The Act would exempt arbitration provisions in collective bargaining agreements from all of the foregoing.

Employers -- and other business people -- must follow this legislation closely.  Check back here at Workplace Horizons after the mark-up for additional information.

In Richardson vs. Commission on Human Rights, Case No. 06-0474-cv (July 7, 2008), the Court of Appeals for the Second Circuit upheld a lower court's ruling that the employer and union did not violate Title VII by agreeing on and complying with a contract provision requiring employees to choose between grievance arbitration of discrimination claims, or administrative and judicial remedies.

The Plaintiff had filed various employment discrimination complaints with the Connecticut State Commission on Human Rights (CHRO) against her employer -- coincidentally, the Connecticut State Commission on Human Rights. Ultimately, Plaintiff was terminated, and amended her most recent charge to include claims arising out of her termination. Her union initially filed a grievance on her behalf challenging the termination, but when it discovered that Plaintiff had also filed CHRO and EEOC charges, they withdrew the grievance and refused to process it further. The union based its action on a collective-bargaining agreement provision which read:

[D]isputes over claimed unlawful discrimination shall be subject to the grievance procedure but shall not be arbitrable if a complaint is filed with the Commission on Human Rights and Opportunities arising from the same common nucleus of operative fact.

Plaintiff, supported by the EEOC, argued that the employer and union's maintenance and enforcement of this provision constituted unlawful retaliation. The Second Circuit decision, however, clearly holds otherwise:

While there are limits on what a union may agree to in collective bargaining, Plaintiff's union has not transgressed them by contracting to limit an employee's legal recourse under certain circumstances. The collective bargaining agreement about which Plaintiff complains simply stipulates that an aggrieved employee may either arbitrate her grievance or file a charge with the CHRO describing that grievance.

* * *

[T] he defendants' withdrawal from arbitration did not constitute retaliation because the forum-selection clause was a reasonable defensive measure to avoid duplicative proceedings in the two fora Richardson's employer maintained for addressing discrimination complaints.

The Court distinguished this case from those arising under the Garndner-Denver line of precedent, in that the CBA provision did not foreclose statutory avenues of relief -- such as the right to file administrative charges or to pursue claims in federal court:

It only requires that the employee make a concrete choice, at a specific time, between filing a state claim with the CHRO and having the union pursue his or her grievance in arbitration.

The Second Circuit acknowledged in the decision that its case law is at odds with the Seventh Circuit's, as set forth in EEOC v. Board of Governors, 957 F.2d 424 (7th Cir.1992). Employers should watch Richardson to follow possible appeal to the U.S. Supreme Court to resolve this split between the Circuits.

Cross-posted at EFCA Updates.

The New York Times today reports:

The United Steelworkers signed a merger agreement on Wednesday with the largest labor organization in Britain and Ireland to create what union leaders said would be the world’s first global union.

The new union, to be called Workers Uniting, will represent more than 2.8 million workers in the steel, paper, oil, health care and transportation industries. Officials said the union plans to hold trans-Atlantic negotiations with companies including the oil conglomerate BP, and ArcelorMittal, the giant steel maker.

“This union is crucial for challenging the growing power of global capital,” said Leo W. Gerard, president of the United Steelworkers, which represents 850,000 workers in the United States and Canada.

While the rhetoric sounds about forty to fifty years out of date, the trans-Atlantic mobilization that this organization will be able to effect cannot be denied.  This may well  be the first in a wave of future international union mergers, designed to allow organized labor to assert its relevance in a global marketplace.  Multi-national employers in all industries must take note.

In a June 27, 2008 decision, the National Labor Relations Board ruled that a temporary employee placement agency violated the law by including a confidentiality provision in employment contracts prohibiting placed workers from disclosing the terms of their employment.  In Northeastern Land Servs. Ltd. d/b/a NLS Group, 352 N.L.R.B. No. 89, Board Chairman Peter C. Schaumber and Member Wilma B. Liebman reversed the administrative law judge's decision dismissing the complaint.  The Board held that the confidentiality provision violated the National Labor Relations Act because employees reasonably would understand it as prohibiting them from discussing their terms of employment with union representatives.

The challenged provision in the contracts read:

Employee understands that the Employee will have direct access to and contact with NLS’ various clients as Employee performs services hereunder and Employee agrees to keep all information obtained or utilized in the course of performing its services strictly confidential. Furthermore, Employee agrees not to solicit work or accept assignments from any of NLS’ clients directly while engaged in services hereunder, or for a period of six (6) months after the termination of this agreement. Employee also understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.  [Emphasis added.] 

Relying on well-established precedent, the Board concluded that employees would reasonably construe this language to prohibit activity protected by Section 7 of the National Labor Relations Act. 

While this is not exactly "new law," it provides notice for prudent employers to review their existing confidentiality policies to ensure they are properly tailored in compliance with the National Labor Relations Act. 

Last week, the House Health, Employment, Labor & Pensions (HELP) Subcommittee held hearings entitled, "An Examination of Discrimination Against Transgender Americans in the Workplace."  Back in November of 2007, by a vote of 235-184, the House passed H.R. 3685, the Employment Discrimination Act of 2007 (ENDA).  The ENDA would prohibit employment discrimination on the basis of actual or perceived sexual orientation.

An earlier version of the bill, H.R. 2015, would have also prohibited discrimination on the basis of "gender identity."  Fearful that this expanded ENDA would not have passed, sponsor Rep. Barney Frank (D-MA) introduced H.R. 3685.  Rep. Tammy Baldwin (D-WI) introduced an amendment prior to the floor vote, seeking to re-insert the transgender protections, but withdrew it in the 11th hour.  Thus, with the more limited bill potentially heading toward the Senate in the future, these hearings discussed whether there is a pressing need for federal legislation to address "gender identity" discrimination as well.

The Baldwin amendment -- and the original text of H.R. 2015 -- define "gender identity" as:

...the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

The Subcommittee heard testimony from four transgendered individuals and the chairman of Dow Chemical's internal LGBT advocacy network in favor of the legislation; and, two attorneys opposed for differing reasons.  All testimony, as well as the introductory statements of the Subcommittee Chairman and Rep. Baldwin are available at the HELP website here.

Although Sen. Edward Kennedy (D-MA) has expressed support for the version of ENDA that has passed the House, it is unclear whether the Senate intends to consider either version of the bill prior to the 2008 elections.  Kennedy's health, politics, a shrinking legislative calendar, and a veto threat all mitigate the chances. 

Still, employers must track this issue closely.  In addition to representing a further erosion of the "employment at will" doctrine, expansion of the ENDA to protect broadly defined "gender identity" rights will create significant challenges.  For example, what is a "gender-related mannerism"?  How does one even consider defining such a term without perpetrating the very stereotypes these laws are intended to combat?  If this law is passed, employers will need significant additional guidance in designing and enforcing workplace policies.

By Chuck Rice and Kathryn Fleming

The U.S. Supreme Court has agreed to review a Ninth Circuit decision holding that AT&T Corp. is liable under Title VII of the 1964 Civil Rights Act for calculating retirement service credits based in part on pre-Pregnancy Discrimination Act leave policies. AT&T Corp. v. Hulteen, 76 U.S.L.W. 3226 (U.S. Jun. 23, 2008) (No. 07-543).

Prior to the 1978 passage of the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy-based discrimination within the scope of sex discrimination, AT&T’s predecessor, PT&T, denied female employees full retirement service credit for pregnancy leave, but granted it for other types of temporary disability leave. Following the enactment of the PDA, PT&T revised its policy to provide service credit for pregnancy leave on the same terms as other temporary disability leave. PT&T did not, however, adjust the service credits of female employees who had taken pregnancy leave before this change, and this calculation was carried over when PT&T became AT&T. Several female employees and their union brought suit against AT&T in 2001, alleging that AT&T violated Title VII by failing to credit them for time spent on pre-PDA pregnancy leave when calculating employee pension and retirement benefits.

Click to read more ...

In a 402-17 vote, the House yesterday approved the ADA Amendments Act (H.R. 3195) without further amendment.  The legislation responds to the U.S. Supreme Court decisions in Sutton v. United Airlines Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing Kentucky Inc. v. Williams, 534 U.S. 184 (2002), claiming the cases "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect."

Within a relatively short span of time, the business and disabilities awareness communities came together to propose a compromise bill, various House committees passed the amendments by overwhelming margins, and the White House expressed support for many of its provisions.

There has been near universal positive response to the bill's passage.  The National Association of Manufacturers (NAM) opined that the legislation was aimed at "Improving the Americans with Disabilities Act," and NAM Vice President Jay Timmons proclaimed it the "right thing to do."

"I've lobbied on Capitol Hill for 25 years and rarely seen anything like the extraordinary coalition of the civil rights, disability and employer communities that have come together around the Americans with Disabilities Amendments Act," said Nancy Zirkin, executive vice president of the Leadership Conference on Civil Rights (LCCR).

The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment."  It would provide that employees are protected against discrimination because of a disability.  It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.

The legislation would also modify the definitions of disabilities and impairments, and would add standards for determining whether an impairment substantially limits an individual's major life activity.

Employers must follow further consideration of this bill as it is taken up now in the Senate, as it appears certain that some form of ADA amendment will be enacted before the end of the year. 

Yesterday, the White House offered support for the “ADA Amendments Act of 2008” (H.R. 3195) passed last week by congressional committees. Still, the President expressed "significant concerns" that some of the provisions could "unduly expand" coverage.

A Statement of Administration Policy indicates that the White House "strongly supports the overall intent" of the legislation, but:

…the administration still has significant concerns with the bill as reported. Specifically, the administration is concerned that a few of the provisions could unduly expand ADA coverage, would result in a significant increase in litigation, and would be difficult to implement.

The full House is expected to begin debate on the bill in the next few days.