RECENT EEOC AND NLRB
ACTIONS AND RULINGS
Keeping Your Organization Out
of Hot Water
Presented by:
Mark J. Foley
Raymond A. Kresge
Overview Of Discussion
• EEO Developments
– EEOC Regulatory Actions
– Significant EEO-Related Employment Cases
– EEOC, Supreme Court and Third Circuit Trends
• Developments in NLRA Practice
– National Labor Relations Board Developments
– Significant Legislative Initiatives
– Do’s and Don’ts for Employers Facing Organizing
Efforts
EEOC: What the numbers show
for Fiscal Year 2007
• Increases in:
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Number of charges
Number of charges resolved on the merits
Mediations
Money from enforcement actions
• The status quo
– Slow turnaround in processing and determining
charges on the merits
– Focus on systemic discrimination
EEOC Initiatives – E-RACE
• Eradicating Racism and Colorism from Employment
– Race continues to comprise the highest number of discrimination
and retaliation claims filed with the EEOC (36% of all charges in
Fiscal Year 2006)
– Opinion polls cited by the EEOC show that the majority of African
Americans and Caucasians (non-Hispanic) think racism is a
“very serious” or “somewhat serious” problem
– New forms of race discrimination are emerging
• Growing number of race charges involving interracial marriages
• Growing number of “race plus” charges
EEOC Initiatives – E-RACE
• What the EEOC is doing to address this
problem:
– Identifying barriers to employment
opportunities
– Focusing on race issues with class and
systemic implications
EEOC Guidance:
Caregiver Discrimination
• Driving Force: Changing demographics
• Population is aging and workers need to care for elderly
• More working mothers today (59% of the workforce in 2005,
compared to 43% in 1970)
• Working men spending more time caring for others (from 2.5
hours per week in 1965 to 7 hours per week in 2003)
• Men and women both working more hours today
• EEOC anticipates increased litigation
EEOC Guidance:
Caregiver Discrimination
• Clarifies existing law
– Federal law does not prohibit discrimination against
workers based solely on caregiver status
• Does NOT have force and effect of law
– Assists EEOC in investigating claims
– Guides employers in preventing and addressing
caregiver discrimination
EEOC Guidance:
Caregiver Discrimination
• EEOC is focusing on:
– Working mothers
– Pregnant workers
– Working women of color
– Working fathers
– Working grandparents
– Others with caregiving responsibilities
EEOC Guidance:
Caregiver Discrimination
• Areas prone to caregiver discrimination
include:
– Hiring
– Promotions
– Opportunities requiring travel
– Training programs
– Granting leave requests
– Skill assessments for reductions-in-force
The New EEO-1 Report
• Background
– Private employers with 100 or more employees, and employers
with 50 or more employees and a federal government contract
amounting to $50,000 or more, must file annually
– EEOC uses data to analyze employment patterns and support
civil rights enforcement actions
– OFCCP uses data in determining which facilities to audit
– First change in four decades
The New EEO-1 Report
• What’s new
– New race and ethnic categories
• Previously, there was no option to identify more than one
racial category
• Now there is a new category – “Two or More Races, (Not
Hispanic or Latino),” for those that fit this description
• Breaks Asians and Pacific Islanders into two categories
– Renames other race and ethnic categories
• Black or African American
• Hispanic or Latino
The New EEO-1 Report
• What’s new, cont’d
– New Job Categories
• Breaks “Officials and Managers” into two categories
– Executive/Senior Level Officials and Managers
– First/Mid-Level Officials and Managers
• Moves business and financial occupations from Officials and
Managers to the Professionals category
– Self-identification v. visual observation
• Voluntary
• No need to resurvey workforces (except in Hawaii, which had
been exempt from survey)
• May still use visual observation if employee declines to
complete self-identification
EEOC Enforcement Action
• EEOC v. Outback Steak House of Fla., 102
FEP Cases 16 (D. Colo., November 2, 2007)
– EEOC brought enforcement action against restaurant
chain for engaging in pattern or practice of
discriminating against women in hiring and in
promotions
– Issue: Did employer have sufficient notice of the
national scope of the EEOC’s claims?
– Holding: No.
EEOC Enforcement Action
– Key points:
• Fact that underlying charges centered on three-state region
of Colorado, Wyoming and Montana did not preclude national
scope of litigation because the EEOC may bring an action
regarding any discrimination it uncovers during an
investigation
• However, the employer’s production of policies covering all of
its workplaces in response to EEOC’s request for general
information such as policies and practices cannot be
construed as evidence that the EEOC was conducting a
nationwide investigation because nearly all charges against
national employers investigated by the EEOC would be
transformed into a nationwide action
• Court recommends EEOC advise employer, in writing, of
national scope of investigation during conciliation process
(if not sooner)
Key EEO Case from the Supreme
Court’s 2006-2007 Term
• Ledbetter v. Goodyear Tire & Rubber,
127 S.Ct. 2162 (May 29, 2007)
– Limitations period runs from date discriminatory pay decision
was made and communicated to employee
– Pay claims involve discrete acts, not continuing violations
• Cannot shift discriminatory intent from old act to recent one
– Congress intended a short limitations period
– No deference owed to EEOC
Ledbetter – The Next Chapter
– Fallout: The Ledbetter Fair Pay Act
• Would amend Title VII, the ADEA, the ADA and the Rehabilitation
Act
• Would allow claims for compensation discrimination to be brought
within 180/300 days of receipt of a discriminatory paycheck or
benefit
• Would apply to all forms of compensation and to other practices that
impact pay (such as denial of a promotion)
• Passed the House on July 31, 2007; identical bill now in the Senate
• President Bush has threatened to veto the bill
Key EEO Cases in the U.S. Supreme
Court’s 2007-2008 Term
• Federal Express Corp. v. Holowecki, No. 06-1322 (on appeal
from the Second Circuit)
• Issue: Can an EEOC Intake Questionnaire be treated as a charge
for purposes of exhausting administrative remedies under the
ADEA?
– Statute states that no civil action may be commenced until 60 days after
a charge is filed with the EEOC
• Relevant Facts:
– Intake questionnaire contained the information required by EEOC
regulations
– The plaintiff in this case was not misled by EEOC
– Employer had no notice of the intake questionnaire
Key EEO Cases in the U.S. Supreme
Court’s 2007-2008 Term
• Second Circuit said “yes”
• EEOC position: Give deference to its
regulations since “charge” is not defined in the
ADEA; intake questionnaire can constitute
charge
• Tension: Unfair to deprive plaintiffs of their
rights when an agency fails to act v. frustrating
role of EEOC in fulfilling its obligations and
depriving employers of pre-suit resolution
Key EEO Cases in the U.S.
Supreme Court’s 2007-2008 Term
• Sprint/United Management Co. v. Mendelsohn,
No. 06-1221 (on appeal from the Tenth Circuit)
• Issue: Can a RIF’d employee introduce evidence
of discrimination in an ADEA action against
another employee, when the other employee had
a different supervisor (i.e., decisionmaker)?
Key EEO Cases in the U.S. Supreme
Court’s 2007-2008 Term
• Tenth Circuit said “yes”
• EEOC position: Evidence can be relevant if it
has any tendency to make more probable an
unlawful motivation, but may be excluded under
F.R.E. 403
• Tension: Difficulty of proving discriminatory
animus v. being required to defend lawsuits
within lawsuits
Key EEO Cases in the U.S. Supreme
Court’s 2007-2008 Term
• Kentucky Retirement Systems v. EEOC,
06-1037 (on appeal from the Sixth
Circuit)
• Issue: Whether an employee benefit plan that
denies older workers disability benefits available
to younger workers or provides fewer benefits to
older workers--in certain circumstances-establishes a prima facie case of discrimination
under the ADEA?
Key EEO Cases in the U.S. Supreme
Court’s 2007-2008 Term
• Sixth Circuit, en banc, said “yes”
• EEOC position: A plan that, on its face, treats
older workers less favorably than younger
workers constitutes a prima facie violation of the
ADEA.
• Tension: What is sufficient to show proof of
discriminatory animus? Must the EEOC show
the employer’s use of age was arbitrary?
Third Circuit Developments
• Eichorn v. AT&T Corp., 484 F.3d 644
(3d Cir. 2007)
– Monetary relief not available for ERISA Section 510 claims, i.e.,
Section 510 plaintiffs limited to equitable relief only
– Decision based on Supreme Court decision in
Great-West and tie-in of Section 510 to civil enforcement through
Section 502(a)(3)
– Section 510 is ERISA “anti-discrimination” provision and
prohibits interference with attainment of any right or benefit to
which participant may become entitled.
EEOC Enforcement Action and
Third Circuit Developments
• Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770 (3d Cir. 2007)
– ERISA Section 510 claims for unlawful terminations accrue when
the employee is given actual notice of the pending termination—
not from the date of the termination
• Note that the statute of limitations for Section 510 claims is
borrowed from state law
– Plaintiff in ERISA Section 510 action is not required to tender
back the proceeds received from signing release in order to
bring suit
Third Circuit Developments
• Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir. 2007)
– Release did not waive age discrimination claims where employer
failed to provide plaintiff with the information required by the
Older Workers Benefit Protection Act (OWBPA), and failed to
advise plaintiff that he had a right to receive it upon request
– Equitable tolling not available based upon invalid release
because it is a misrepresentation of law, not fact
– Plaintiff cannot avail himself of the “single filing rule” available in
collective and class actions where the class has been decertified
Third Circuit Developments
•
El v. SEPTA, 479 F.3d 232 (3d Cir. 2007)
– Issue: Do hiring criteria that bar applicants with certain criminal
convictions from paratransit driver jobs have an unlawful disparate
impact on African Americans and Hispanics?
– SEPTA‘s policy provides that convictions for crimes of violence bar
employment as a driver for life
– Plaintiff was convicted of second degree murder 40 years prior to his
application for a job at SEPTA
– SEPTA claimed business necessity defense
– Court affirmed summary judgment for SEPTA on business necessity
defense
Third Circuit Developments
– Business necessity standard: Must show that a discriminatory
hiring policy “accurately-but not perfectly-ascertains an
applicant’s ability to perform successfully the job in question”
– Court does not defer to EEOC Compliance Manual, which
requires that employers take into account time since conviction
– Court states that Title VII does not measure care in formulating
hiring policies; it requires an employer to be able to show
business necessity when challenged
• Here SEPTA witnesses could not articulate why policy was
structured as it was, but expert reports provided evidence
to support business necessity defense
Increased Union Organizing Efforts
• “Change to Win” Labor Federation was created
in 2005 with the stated purpose of increasing
organizing activity
• Change to Win member unions have committed
to spending several hundred million dollars
annually on organizing efforts
• Last year the AFL-CIO announced plans to
spend an additional $150 million a year on
organizing efforts
Increased Union Organizing Efforts
• Teamsters International had fewer than 20 field
organizers three years ago; today it employs 200, and
the Teamsters organized more than 20,000 new
members last year.
• Laborers expect to spend $100 million a year on
organizing by 2009.
• Political spending by Unions continues to increase as
well. It is estimated that unions spent over $500 million
to influence the 2004 elections, and that amount is sure
to increase in the upcoming election cycle.
NLRB Developments –
Statutory Supervisors
• Oakwood Healthcare, Inc., 348 NLRB
No. 37 (2006)
– This, and two other Board decisions now
known as the Kentucky River decisions, have
expanded the definition of “supervisors” who
are excluded from many of the protections of
the National Labor Relations Act.
NLRB Developments –
Statutory Supervisors (cont’d…)
– Employees are deemed supervisors if:
• They have authority to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward, or discipline other employees,
or responsibility to direct them, or adjust their grievances, or
effectively to recommend such action;
• their authority requires the exercise of “independent judgment”; and
• their authority is held “in the interest of the employer.”
– Board draws distinction between “true supervisors” and mere
“straw bosses” who only have minor supervisory duties.
NLRB Developments –
Statutory Supervisors (cont’d…)
• The Board focused on three statutory construction issues:
– The Board first interpreted the term “assign” to refer to “the act of
designating an employee to a place (such as a location, department, or
wing), appointing an employee to a time (such as a shift or overtime
period), or giving significant overall duties, i.e. tasks, to an employee.”
In the health care context, this includes such transitory acts as
occasionally assigning nurses to particular patients.
– Next, the Board evaluated the term “responsibility to direct” and found
that “to be ‘responsible,’ the person directing and performing the
oversight of the employee must be accountable for the performance of
the task by the other, such that some adverse consequence may befall
the one providing the oversight if the tasks performed by the employee
are not performed properly.” “Directing” an employee need not be done
on a full-time basis so long as it is done on a “regular and substantial”
basis.
NLRB Developments –
Statutory Supervisors (cont’d…)
– The Board then turned to the meaning of “independent
judgment,” finding the term required that the employee act “free
from the control of others and form an opinion or evaluation by
discerning and comparing data”; the degree of discretion
exercised must be more than “routine and clerical.”
Salting
• Toering Electric Company,
351 NLRB No. 18 (Sept. 18, 2007)
– Significant change to the burden of proof in salting cases
– Board expressed concern that Act was being abused by Unions
who filed charges on behalf of “salts” simply to disrupt non-union
employers’ business.
– General Counsel must now prove that a “salt” was “genuinely
interested in an employment relationship with the hiring
employer” to prove a discrimination claim under NLRA
Salting
– Employer may contest genuineness of a salt’s
application through evidence the individual:
• Recently refused similar employment with the employer;
• Incorporated belligerent or offensive comments on his or her
application;
• Engaged in disruptive, insulting or antagonistic behavior
during the application process; or
• Other similar conduct inconsistent with a genuine interest in
employment
New Remedy Standards
in Salting Cases
• Oil Capitol Sheet Metal, Inc.,
349 NLRB No. 118 (2007)
– Board held it would no longer apply a presumption of
indefinite employment in determining gross backpay
amounts for union salts who successfully prove a
discrimination claim
– Instead, General Counsel must prove reasonableness
of claimed backpay period
New Remedy Standards
in Salting Cases (cont’d…)
– Relevant evidence includes:
• Salt’s personal circumstances;
• Union policies/practices on salting campaigns;
• Union’s specific plans for the employer; and
• Historical data regarding the duration of
employment of salts in similar salting campaigns
Union Access to
Employer’s E-Mail System
• Media General Operations v. NLRB, 181
LRRM 2632 (4th Cir. 2007)
– Enforced Board Order holding employer violated
Section 8(a)(1) by barring union agents from using
employer’s email system for union business
– Employer had policy restricting email use to company
business
– In practice, employees used email for a variety of
non-business uses, such as personal messages,
planning social events and charitable solicitations
Union Access to
Employer’s E-Mail System (cont’d…)
– Only enforcement of policy was discipline of
employees who sent pornographic pictures
– Company sought to discipline union president for
sending union-related messages
– Board and Fourth Circuit held an employer may not
interfere with union members’ ability to communicate,
nor can it discriminate between union and non-union
communications
Union Access to
Employer’s E-Mail System (cont’d…)
• Board also has pending before it Guard Publishing
Corp., in which the Board must determine the lawfulness
of an employer’s ban on all non-work uses of email.
– The decision is expected to have a significant impact
on an employer’s prerogative to control use of its
email system.
Union Campaigns and Elections –
Employer Speech and Interference
• Medieval Knights LLC, 350 NLRB No. 17 (2007)
– During a union campaign, the employer hired consultants to
educate employees about the election process
– At a meeting of employees, consultant conducted a mock
exercise on collective bargaining
– Consultant said employer could stall negotiations by giving in on
lesser items and holding out on important issues such as wages,
and still maintain appearance of good faith bargaining
– Board found conduct lawful since it involved hypothetical
bargaining parties and consultant never said employer would
engage in such tactics
• Madison Square Garden, LLC, 350 NLRB No. 8 (2007)
– Pro-union activities of company supervisors can void election
results in favor of union
– During campaign, supervisors had signed flyers supporting
union, handed out authorization cards and actively campaigned
for union
– Supervisors ignored company’s request that they opposed the
campaign or remain neutral
– Board found that due to supervisors’ power and influence over
employees, such activities were potentially coercive
New Requirements for Mock Ballots
• Ryder Memorial Hospital, 351 NLRB No. 26 (Sept. 28,
2007)
– Board announced it will not set aside a representation election
based on a party’s use of an altered sample ballot, provided the
altered ballot is a reproduction of the Board’s newly-revised
sample ballot.
– Board’s revised sample ballot contains disclaimer language
stating: “The National Labor Relations Board does not endorse
any choice in this election. Any markings that you may see on
any sample ballot have not been put there by the National Labor
Relations Board.”
Voluntary Recognition and Decertification
• Dana Corp., 351 NLRB No. 28 (2007)
– Held that employees have 45 days after receiving notice that
their employer has recognized a union based on a card check to
file a petition for a decertification election.
– Decision requires that the employer and/or Union notify the
NLRB regional office in writing regarding a card check or
voluntary recognition, and the employer must post a Board
notice in the workplace for 45 days.
– Board also modified contract bar rules, so that an agreement
executed after recognition will not bar a decertification petition
unless employees received notice of the recognition and 45 days
have passed without a decertification petition being filed.
Voluntary Recognition
and Decertification
• Supervalu, Inc., 351 NLRB No. 41 (Sept. 30, 2007)
– Provision in CBA requiring employer to recognize union and new
bargaining units based on a card check at non-union locations is
a permissive, not mandatory subject of bargaining
– Because the subject is merely permissive, if union pressures
employer to negotiate a card check agreement covering new or
separate bargaining units, the employer may refuse to bargain
over such a proposal and may pursue a ULP charge if the union
insists on such a proposal to impasse
New Rules on Lawsuits Filed by
Employers
• BE & K Construction, 351 NLRB No. 29 (Sept. 29,
2007),
– Board established a new legal standard regarding employer
lawsuits against unions for activity arguably protected by the
NLRA.
– Board held that so long as the lawsuit had a “reasonable basis,”
it could not be found to violate the Act even if the employer’s
motive was retaliatory.
Supreme Court To Review Statute
Prohibiting Use Of State
Funds To Oppose Unionization
• Supreme Court recently announced it would hear Chambers v.
Brown, an appeal from the 9th Circuit
• The 9th Circuit upheld a California law prohibiting private-sector
employers who receive state funds from using such funds “to assist,
promote, or deter union organizing.”
• The 9th Circuit had reasoned that the provision did not violate the
First Amendment and was not preempted by the NLRA
• Supreme Court’s decision may have a significant impact on similar
provisions in other states
New NLRB Memorandum on Remedies
• On May 29, 2007, the General Counsel issued a
Memorandum on circumstances warranting additional
remedies when ULPs interfere with bargaining for an
initial contract.
• Regions must submit to Division of Advice cases
involving ULPs during bargaining for an initial contract
• Memorandum encourages use not only of Section 10(j)
injunctions in these cases, but also:
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Requiring bargaining on a compressed schedule;
Periodic reports on the status of bargaining;
A minimum six-month extension of the certification year; and
Reimbursement of bargaining costs
NLRB Internal Practices and Procedures
• On September 25, 2007, the General Counsel issued a
Memorandum identifying “novel, complex, or unsettled
legal questions” that regional offices must submit to the
Division of Advice.
• These include four categories of cases:
– Those involving an absence of precedent and certain policy
priorities;
– Cases requiring development of a litigation strategy in light of
adverse circuit court law or Board precedent;
– Cases involving “difficult legal issues,” such as agreements to
boycott another employer or those involving undocumented
worker issues; and
– Cases where 10(j) injunctive relief is contemplated
Legislative Developments
• Employee Free Choice Act
– The Bill would:
• Require employers to recognize and bargain with unions
based only on a “card check”
• Dramatically alter the collective bargaining process by
requiring that an arbitrator be given the power to impose
contract terms where the employer and union fail to reach
agreement on an initial contract; and
• Substantially increase penalties imposed on employers for
labor law violations during union organizing campaigns.
• Re-Empowerment of Skilled and
Professional Employees and Construction
Tradeworkers (RESPECT) Act
– Would overturn NLRB’s Kentucky River
decisions and narrow the statutory definition
of “supervisor”