Tuesday, January 31, 2017

Wisconsin Lawmakers to Vote on PLA Bill on Thursday

As I reported on yesterday on the blog, a bill is being considered in Wisconsin that would prohibit local governments from using project labor agreements (PLA's) as part of the bidding process on public construction projects.  Wisconsin lawmakers on the Senate’s Committee on Labor and Regulatory Reform are scheduled to vote on that bill this Thursday.    Because this is yet another attack on unions, many lawmakers are voicing opposition, including Milwaukee Alderman Cavalier Johnson.

I will be following the progress of this proposed bill and report more on it as it develops. 

If An Employee Fails to Return to Work from Leave, Can An Employer Label it a "Voluntary Resignation"?

A very popular and common way employer's separate an employee from their employment is by labeling certain circumstances a "voluntary resignation."  For example, employer's will issue employee's letter stating that if they do not comply with or do certain things, like, return to work, they will be deemed a "voluntary resignation."  This very often becomes a focus of subsequent litigation as a recent case out of California highlights as a California court of appeals reversed a lower court's grant of summary judgment for an employer finding that an employee's communications while they were on leave could be deemed to be a reasonable request for additional leave.

In Leticia Bareno v. San Diego Community College District, the plaintiff had a history of being disciplined by the defendant for performance issues.  In early 2013, the plaintiff was disciplined and issued a 3-day suspension from work without pay.  On the date the plaintiff was to return to work, she notified the defendant of her need for medical leave in the form of a note from her doctor.  From The National Law Review article on the case:
On the date her original leave was set to expire, a Friday, Plaintiff emailed the College a second doctor’s note extending her leave an additional week. The College strongly denied ever receiving that email.  On that same date, the Plaintiff sent the College another email – which was received – stating that she was out on a medical leave and would notify all concerned of her return but provided no further detail of her return date or supporting documentation from her doctor. 
Plaintiff continued to be absent from work the following work week (the “disputed week”). As a result, at the end of the disputed week, the College mailed Plaintiff a letter to inform her that her five consecutive unauthorized absences constituted a voluntary resignation.  As soon as the Plaintiff received the College’s letter, she immediately attempted to contact the College and provided the College with medical documentation supporting the medical necessity of her absences, but the College refused to reconsider.
Thus, the defendant attempted to do what a lot of employers do and give a strict directive that, if not followed, would allow them to separate the employee from their employment and label it a "quit."  Because the plaintiff was clearly trying to obtain medical leave to allow her to not return on her scheduled return date, it doomed the defendant on appeal.  The defendant in this case should have ascertained whether the employee was able to pursue valid leave instead of ignoring the plaintiff's communications and automatically separating when she did not return following her 3-day suspension.

Monday, January 30, 2017

Wisconsin Considering Bill That Would Prohibit Local Governments from Using Project Labor Agreements As Part of Bidding Process for Public Construction Projects

A bill has been proposed and hearings held in both the Assembly and Senate in Wisconsin whereby local governments would be prohibited from using Project Labor Agreements (PLA’s) as part of the bidding process for government construction projects like schools, libraries and jails.  Proponents of the bill say it will foster competition for construction projects and gives employees free choice in deciding whether to be subject to union control while critics of the bill say this undermines Wisconsin workers as other states could then bid on local projects taking away jobs from local residents, would prevent jobs from being completed on time, and could even jeopardize safety of workers.  Around half of the States currently prohibit PLA's.

A PLA is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project.  A project labor agreement requires all contractors, whether they are unionized or not, to subject themselves and their employees to unionization in order to work on a government-funded construction project. This is done by including a union collective bargaining agreement in a public construction project’s bid specifications. In order to receive a contract, a contractor must sign the agreement and subject its employees to union control.

For more on this proposed legislation, see here and here.

Thursday, January 26, 2017

Releasing an Employee's Medical Information May Violate FMLA

A Federal District Court in Florida recently denied an employer's Rule 12(b)(6) Motion to Dismiss a federal Family and Medical Leave Act ("FMLA") alleging both interference and retaliation.  Though the Court did signal some difficulties the Plaintiff *may* have pursuing his claim with these facts under the FMLA, for purposes of whether his complaint was sufficiently plead, the Court ruled that it was and may proceed to discovery.

The plaintiff, Scott Holtrey, worked for the defendant, Collier County Board of County Commissioners since 2006 and in June 2015, he developed a chronic and serious health condition with his genitourinary system.  Halter applied for leave under the FMLA and his application included 'sensitive and detailed medical information.'  The defendant approved Holtrey's FMLA leave request. Unbeknownst to Holtrey, a management-level employees allegedly disclosed his condition to his coworkers and subordinates at a staff meeting that he did not attend.  Approximately eight (8) coworkers and subordinates learned of Holtrey's medical condition and these coworkers and subordinates approached Holtrey to inquire about his condition and "frequently make fun of him."  The complaint also stated that the "subordinate employees have been making jokes and obscene gestures about [his] condition in front of him."  Holtrey sought corrective action but the Defendant file to remedy the situation.  As a result, Holtrey filed this action under the FMLA alleging claims for FMLA interference and retaliation for Defendant's alleged breaching of his confidentiality under the FMLA.  The Defendant filed a Rule 12(b)(6) Motion to Dismiss the complaint arguing that Holtrey failed to allege that he was denied his FMLA benefits or engaged in an adverse employment action resulting in damages.  The defendant argues that it approved and Holtrey received his FMLA leave and that his FMLA interference claim fails because Holtrey did not adequately allege a hostile work environment.

FMLA Interference

FMLA interference occurs when an employer interferes with, restrains, or denies the exercise or attempted exercise of rights or benefits under the FMLA.  An employee alleging a claim of interference "need only demonstrate by a preponderance of the evidence that he was entitled to the benefit denied."  Additionally, "records and documents relating to certifications, recertifications or medical histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records in separate files/records from the usual personnel files."  However, the Court noted a potential issue moving forward as they stated, "it is unsettled whether this provision gives rise to a private right of action for disclosure."  Because the Defendant was only challenging the sufficiency of Holtrey's claim and not whether there is a private right of action, the Court denied the motion to dismiss on this claim.

The Court wa also not persuaded by Defendant's argument that the interference claim fails because Holtrey, by his own admission, was granted leave.  The issue in this case is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.  The court further stated, "although district courts conflict on whether a disclosure of an employee's medical information constitutes an interference claim under FMLA, the Court finds that the enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA."

The Court also upheld Holtrey's hostile work environment claim because he alleged the Defendant interfered with his FMLA rights by disclosing his confidential medical information to his coworkers and subordinates, which resulted in a work environment riddled with obscene gestures and jokes at his expense.  The Court concluded that this sufficiently alleged that this altered his work conditions.

FMLA Retaliation

To succeed on an FMLA retaliation claim, an employee must demonstrate that her employer intentionally discriminated against her in the form of an adverse employment action for having exercised an FMLA right.  To sufficiently allege a retaliation claim, the employee must show, "1) he engaged in a statutorily protected activity; 2) he suffered an adverse employment decision; and 3) the decision was causally related to the protected activity.  The parties squared over the second element.

As with retaliation claims under Title VII, a challenged employment action is "materially adverse" if it well might have dissuaded a reasonable worker from making or supporting a claim under the FMLA.  Holtrey alleged that Defendant's disclosure of his confidential FMLA information constitutes a materially adverse action because it resulted in his co-workers making repeated and frequent jokes and obscene gestures about his condition.  The Court further stated, "at this early stage of litigation, the Court is hard-pressed to find that disclosing confidential medical information about an individual's genito-urinary system to that employee's coworkers and subordinates does not materially affect his working conditions.

The case is  Holtrey v. Collier County Bd. of Commissioners


Monday, January 23, 2017

Can I Be Fired for by my Employer for My Politics?

The recent presidential election has been nothing short of a lightning rod, sparking huge protests across the nation this past weekend and many people took to social media to vent their opinions and frustrations.  How are employee's political stances and opinions protected in the workplace?  It depends (typical lawyer response, but I'll explain below).

First Amendment Protection

The most obvious argument people like to make is that their political speech is protected by the First Amendment of the Constitution.  Well, not really, unless you work in the public sector as the First Amendment prohibits the GOVERNMENT'S restriction on free speech, not private employers.

National Labor Relations Act (NLRA)

The NLRA is a federal labor law that does not only apply to union members (but does only apply to non-supervisory employees) and Section 7 of the NLRA provides that “[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection.”  Thus, if an employee(s) engages in conduct to attempt to improve workplace conditions and the workplace generally for them and their coworkers, then it may be a violation if an employer retaliates against employees who do this.  So, for example, if an employee advocates or participates in political activities such as marches and protests for things like paid sick leave, a living wage, etc, then it will more than likely be held unlawful to be disciplined or terminated for these activities.

Anti-Discrimination Laws

Some political issues relate to employees' protected class status such as their sex, race, national origin, religion, etc.  If employees engage in impassioned talk about these things, they could be considered harassing and even as creating a hostile work environment, depending on the situation.  Thus, employers can, in those circumstances, regulate employee's speech in the workplace.

Wednesday, January 18, 2017

NLRB Holds Employer's Work Rule Prohibiting 'Insubordination Or Other Disrespectful Conduct’ And ‘Boisterous Or Other Disruptive Activity In The Workplace’ Violated Section 7 of NLRA

In what many will call the National Labor Relation Board's ("NLRB") continued broad expansion of Section 7 of the National Labor Relations Act ("NLRA"), the Board upheld an administrative law judge's decision holding that an employee’s call to his coworker to warn him that his job was in jeopardy was an inherently "concerted protected activity" and that the employer violated Section 8(a)(1) of the Act by discharging the employee for this activity because their policy would "reasonably construe" their employees to prohibit Section 7 activity.

More specifically, an employee of Component Bar Products, Inc. told his coworker that the coworker’s supervisor was upset with him and that his coworker may no longer have a job. The employee was then discharged for misconduct in violation of Component's personal conduct policy by involving himself in his coworker’s personnel activities and exceeding his authority by telling his coworker that he was fired.  In finding for the employee, the administrative law judge found that some of Component’s workplace rules violated Section 8(a)(1) of the NLRA by chilling the exercise of employees’ Section 7 rights of joining together to advance their interests. Component filed an exception to the administrative law judge’s decision, but the Board upheld the ALJ's decision.

The case is Component Bar Products, Inc., 364 NLRB No. 140 (Nov. 8, 2016).  For more on this decision, see here.

U.S. Supreme Court Grants Cert in Wisconsin-Based Case on Use of Arbitration Agreements in Continued Employment

Last spring the Court of Appeals for the 7th Circuit ruled that Epic System Corp.'s arbitration agreement, which prohibits employees from participating in “any class, collective or representative proceeding,” violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA).  In doing so, the 7th Circuit became the first federal circuit to side with the National Labor Relation Board ("NLRB") (see D.R. Horton Inc., 357 NLRB 184 (2012) and created a circuit split as the Second, Eighth, and most notably, the Fifth Circuit have rejected this opinion, with the Ninth Circuit acknowledging the trend.

In holding that Epic's arbitration agreement violated the NLRA, the 7th Circuit held that collective actions are "concerted activity" and “[c]ollective, representative, and class legal remedies allow employees to band together and thereby equalize bargaining power,” wrote Judge Diane Wood for the three-judge panel. “Given Section 7’s intentionally broad sweep, there is no reason to think that Congress meant to exclude collective remedies from its compass.”  

At issue before the Supreme Court is “Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”

What makes this an especially interesting case for me is that my law school classmate and colleague, Attorney David Moeller of Hawks, Quindel is of counsel for the respondent.  A huge congrats to him and his firm!

For more on this issue, see here and here.