The Survival of Abood v. Detroit Board of Education, Part 3

Contributed by Carlos Arévalo, March 29, 2017

43832518 - law.

Gavel and scales of justice

Exactly a year ago today in what now appears to be a temporary reprieve, the United States Supreme Court issued its decision in Friedrichs v. California Teachers Association.  An “equally divided court” affirmed the judgment of the 9th Circuit that “fair share” or “agency” fee provisions in public sector contracts were valid.  Up to that time, observers had anticipated that the Supreme Court would use Friedrichs to overturn its 1977 opinion in Abood v. Detroit Board of Education, which held agency fees were deemed proper if exacted for “collective bargaining, contract administration and grievance adjustment” but not for “ideological or political purposes.”  However, with the passing of Justice Antonin Scalia, the Supreme Court could not muster a majority and the status quo remained.

Fast forward to March 2017, and following Donald Trump’s victory in the race for the White House, we find ourselves in the middle of confirmation hearings to fill the Supreme Court vacancy with President Trump’s choice, Judge Neil Gorsuch, a conservative appellate judge from the 10th Circuit who, most would agree, will likely tip the scales in favor of overturning Abood.

Indeed, new cases are making their way through the system in an effort to put the fair share question back on the Supreme Court’s docket.  Just last week, the 7th Circuit affirmed a dismissal of a complaint in Janus v. AFSCME where Judge Posner noted that neither the 7th Circuit nor the district court can overrule the Abood decision.  Janus, which began as Rauner v. AFSCME, was first filed by Republican Illinois Governor Bruce Rauner shortly after his election. Northern Illinois District Judge Robert Gettleman dismissed Governor Rauner’s complaint noting that Rauner had “no personal interest at stake” as he was “not subject to the fair share fees requirement.”  To keep the lawsuit moving forward, and with the backing of the National Right to Work Legal Defense Foundation and the Liberty Justice Center, Mark Janus and fellow state employee Brian Trygg intervened in the case.

In February 2017, Ryan Yohn and a number of his fellow teachers filed a case in the Central District of California against the California Teachers Association following the Friedrichs blueprint and seeking to enjoin Defendants from requiring nonunion employees to pay agency fees.  And, in the Western District of Kentucky, a class action filed by teachers working for Jefferson County Public School Board of Education where plaintiffs allege that requiring union nonmembers to pay a “fair share” fee is unconstitutional is currently pending and moving forward.

As noted by Justice Elena Kagan during the Friedrichs oral arguments in early 2016, overruling Abood will impact “tens of thousands of contracts with [agency fee] provisions…affect[ing] millions of employees” across the country.  Clearly, we have not heard the last word on this issue and it will most certainly make its way up to the Supreme Court.  Stay tuned!

Check out our previous articles on Abood and the challenges to public sector agency fees:

Part One: Will Abood V. Detroit Board of Education Survive?

Part Two: Abood v. Detroit Board of Education Survives…for now?

Senate Approves Measure to Kill OSHA Statute of Limitations Change for Recordkeeping Violations

Contributed by Jonathon Hoag, March 24, 2017

On March 22, 2017, the U.S. Senate passed a measure to revoke OSHA’s modification to the six-month statute of limitations for recordkeeping violations. Under the Obama Administration, OSHA issued a new rule to extend the statute of limitations for recordkeeping violations from six months to five years. The changed recordkeeping regulation went into effect in January 2017, but a bill is now on its way to President Trump who is expected to sign the bill and revoke the new regulation.

Employer

Employer sitting at desk

OSHA issued the new recordkeeping rule on December 16, 2016 in response to an adverse decision by the U.S. Court of Appeals for the D.C. Circuit.  AKM LLC d/b/a/ Volks Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir. 2012). In Volks, the court unanimously held that recordkeeping violations are subject to OSHA’s standard six month statute of limitation. OSHA disagreed and argued recordkeeping violations should be subject to a five year statute of limitations inasmuch as employers are required to maintain injury logs for five years. However, instead of appealing the decision in Volk, OSHA changed the rule to make recordkeeping violations subject to a 5 year statute of limitations.

Employers were rightfully concerned about OSHA’s new rule given OSHA’s focus on recordkeeping violations and the inherent difficulty in addressing the context of an entry on an injury log up to five years old. With recordkeeping being such an important requirement that employers must get right, it at least appears that with the new law employers will be relieved from overreaching exposure to penalties for OSHA recordkeeping violations.

Final Rule on Health Plan Nondiscrimination

Contributed by Rebecca Dobbs Bush, March 21, 2017

Although bathroom use seems to be at the forefront with the media in regards to transgender issues; there are several other issues to consider, and the final rule on health plan nondiscrimination is no exception. Transgender related health services tend to deal with gender dysphoria, a medical condition where an individual’s gender identity is different from the sex assigned to that individual at birth.

12837750 - stethoscope wrapped around health insurance policies, soft focusThe final regulations implementing Affordable Care Act (ACA) Section 1557 is applicable to plan years beginning on or after January 1, 2017. Within the final rule, the following prohibitions apply to covered entities, such as insurance companies and insurance marketplaces:

  • A plan may not impose additional cost sharing on the basis of race, color, national origin, sex, age or disability. Such discrimination is also prohibited if based on the fact that an individual’s sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available;
  • A plan may not have or implement a categorical coverage exclusion or limitation for all health services related to gender transition; or
  • Otherwise deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage for specific health services related to gender transition if such denial, limitation or restriction results in discrimination against a transgender individual.

In short, transgender related health services would need to be on par with other covered services to avoid claims of discrimination.

While employers are generally not “covered entities” and are not directly mandated to comply with the final regulations, the regulation affects insurance companies that market and sell health plans to employers. Some states, such as Illinois, have already incorporated requirements in their Insurance Code mandating coverage of transgender related services.

In any case, whether offering an insured plan or a self-insured plan, employers should give consideration to providing some level of additional transgender related benefit coverage to avoid potential claims of discrimination from participants or investigations from the EEOC. The Office of Civil Rights (OCR) has indicated that complaints of discrimination, such as plan design based discrimination, against non-covered entities (such as employers) will be referred to the EEOC as they will be outside the scope of the final regulation. For most employers, the employee population will provide a very low instance of those seeking to utilize coverage for transgender related services. With this in mind, the potential plan cost may be equivalent or less than the cost of defending a claim of discrimination, making it economical to incorporate such coverage in a plan. It remains to be seen whether employers will be able to avoid compliance on the basis of moral or religious reasons and whether any changes will be made by the newly elected administration.

Recordkeeping Compliance Tips

Contributed by Noah A. Frank, March 16, 2017

Nondiscrimination and privacy laws make recordkeeping a daunting task. Here are some compliance tips for today’s highly legislated and regulated business world:

KNOW THE FILE TYPES

Not all files are the same.

38340529 - personnel word on folder register of card index. selective focus.A Personnel file contains documents used to determine qualifications for employment (e.g., promotion, transfer, compensation), discharge, and other discipline. Therefore, do not include records indicating protected characteristics – race, religion, marital/dependent status, date of birth (age) and the like – because this information should not determine an employee’s qualifications. In some states, like Illinois, employees have the right to inspect personnel files, and even submit rebuttals! Typically, there are limits to frequency of reviews and the types of records which may be reviewed.

Secure Payroll/Confidential files maintain sensitive personal and financial information, such as date of birth, Social Security Number, financial account information, marital/familial status, wage garnishments/assignments, and self-identifying of race, disability or veteran status records. While subject to discovery in litigation, these files are typically not subject to personnel records review.

Medical files house FMLA and other medical absence records, requests for disability accommodation, and other personal health information. Safeguard these files on a strict need-to-know basis; direct supervisors should almost never have access to a subordinate’s medical file.

Use separate files for each investigation (sexual harassment, theft, or other) and Workers’ Compensation accident.  All Forms I-9 should be stored in one file.

PERFORM A FILE AUDIT

Given the increase in employment litigation, good file hygiene is a must:

  • Ensure forms are compliant. Update applications and other personnel forms to make recordkeeping easier.
  • Develop a record-retention policy – Ensure you keep records for the required period of time. Even employment applications for non-hires must be retained for at least one year from the decision date. In Illinois, employment records should be kept for the length of employment plus 3 years; payroll records and individual employment contracts should be kept for 10 years post-employment. Hazardous exposure/monitoring reports (MSDS) must be kept for 30 years! Other records fall in between, varying by applicable law.
  • Destroy old records! The inclination to cheaply archive old data can significantly increase litigation costs. Before you just purge though, make sure you understand legal obligations in keeping records (see record retention above). When purging make sure to follow your schedule and the law, including any preservation obligations because of actual or pending litigation.
  • Execute an audit plan. Prepare proper files for all new employees. Divide current employees by months, and review a few each week, separating old employment files into the correct categories. While it was once common for job applications to ask date of birth, marital status, gender, and similar questions, this is a ripe source for a discrimination claim. Consider strategies to re-categorize or separate out such information. Consider an overall HR audit to make sure all of your policies, procedures and forms are in line with current laws.
  • Protect your data from breach. Encrypt and password-protect electronically stored files.

Seek the advice of experienced employment counsel when faced with a records request or to help with the audit. They know the law, and can quickly ensure that the proper records are produced (or not) and avoid a Department of Labor records review compliance investigation

Complimentary Webinar: Missouri Becomes the 28th Right-to-Work State: What You Need to Know!

Join Michael MacHarg and Patrick Sanders on Wednesday, April 19 at 12:00 PM CT for an hour long webinar as they discuss the nuts and bolts of the right-to-work (RTW) law. Last month, the Missouri governor signed into law a right-to-work bill, effective August 28, 2017, making Missouri the 28th RTW state. Right-to-work laws guarantee that no person can be compelled, as a condition of employment, to join or not to join, nor to pay dues to a labor union.

What does this mean for employers? Specifically, Jeff and Patrick will cover:

  • The law’s application and timelines
  • Types of actions the law prohibits
  • Penalties for violations
  • Potential effect on current and future collective bargaining and what new labor agreements will look like

Don’t miss this timely discussion and opportunity to submit questions on how the new provisions could impact your business!

Click here to register!

Protests Planned for March 8 Are Not A Reason to Deviate from Normal Attendance Policies

Contributed by Suzanne Newcomb, March 3, 2017

11058926 - protesters crowd landscape background illustrationThe organizers of January’s Women’s March on Washington and similar “sister” marches across the country are calling for women to “take the day off from paid and unpaid labor” on March 8, 2017.  Promoted as a “Day Without A Woman” and an “International Women’s Strike,” the protests are scheduled to coincide with International Woman’s Day.

While we do not anticipate the level of participation to be on the scale of the January marches, employers will likely experience higher than normal employee absences and should plan accordingly. As a general rule:

  • Have a backup plan to ensure necessary work gets done in the event you experience an abnormally high number of call-ins on March 8.
  • Do not draw attention to the issue or address the protests in advance. Do not threaten or make generalized statements that could be construed to have a gender bias.
  • Do not highlight the reason for the absence, question motives, or engage in debate about the proprietary of engaging in this type of protest.
  • Apply your standard attendance policies for call in and vacation request procedures. If a participating employee’s absence would ordinarily result in an assessment of points or discipline, act accordingly. Similarly, if a request for time off would otherwise be granted, then it should be granted in this situation.
  • Do not include terms or references such as, “protest,” “strike,” “boycott,” or “women’s march” when issuing disciplinary action or denying requests for time off pursuant to the terms of your standard attendance policy. Such references are unnecessary and could aggravate the situation.

In short, remain calm and follow standard operating procedures.

Properly Accommodating Pregnant Employees in Hazardous Workplaces

Contributed by Steven Jados, March 2, 2017

The settlement of a recent pregnancy discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against RTG Furniture Corp., provides a valuable reminder to employers that even well-intentioned limitations placed on pregnant employees are likely to violate Title VII and, where applicable, state laws that prohibit pregnancy discrimination.

pregnant-employeeAccording to the EEOC’s allegations in the lawsuit, within days of being hired, a new employee informed RTG that she was pregnant, but that she had no work restrictions and could perform all aspects of the job. The job required the employee to use certain chemicals to repair furniture. The same day the employee disclosed her pregnancy, RTG management allegedly met with her and confirmed that she was pregnant. During that same meeting, a manager allegedly showed the employee the can of a chemical used in the workplace, and discussed the warning written on the can, which essentially stated that the contents could pose a danger to pregnant women and their unborn children. At the conclusion of that discussion, RTG allegedly terminated the new employee.

Now, it is important to remember that allegations in an EEOC lawsuit are, of course, not necessarily true—and the fact that the case settled, likewise, does not mean the EEOC’s allegations are the truth. Nevertheless, this case provides the useful instruction that employers generally cannot terminate pregnant employees or refuse to hire pregnant applicants, even if the job involves exposure to hazards that are particularly dangerous with respect to pregnancy.

This case also provides the opportunity to discuss the proper approach for employers concerned about exposing pregnant employees to potentially hazardous workplace conditions. Step one, of course, is: don’t terminate employees just because they are pregnant. Instead, employers concerned about exposing pregnant employees to harmful workplace conditions should have policies in place—in employee handbooks, for example—that inform employees, upon hire or even earlier, of the potential risks of the job. And if those risks are greater for pregnant employees, the policies should make clear that pregnant employees should feel free to request accommodations or otherwise bring any questions or concerns to human resources or other appropriate members of management.  Additionally, when an employee informs the company that she is pregnant, the company should take that opportunity to reiterate, in writing, the particular risks of the work environment, and remind the employee of her right to request a pregnancy-related accommodation.

If a pregnant employee wishes to continue doing her job, despite knowing and assuming whatever risks there may be, employers generally do not have the right to take any action that would adversely affect the employee’s job. Moreover, it is especially important for employers to recognize that in addition to federal law protections, there may also be state and local laws that provide additional protections or accommodation requirements for pregnant employees and applicants.

Bearing all of that in mind, employers concerned about exposing pregnant employees to workplace hazards or their obligations to accommodate a pregnant employee should consult with experienced labor and employment counsel to evaluate the hazards in the workplace, and ensure that all policies and notices to pregnant employees are drafted appropriately, and communicated properly.