Determining 'Opprobrious' Conduct Under the National Labor Relations Act

An employee who engages in opprobrious conduct can loose protection under the NLRA. An interesting May 30, 2017 NYLJ article explores what is opprobrious conduct, here. The article states in part:

On April 21, 2017, the U.S. Court of Appeals for the Second Circuit decided NLRB v. Pier Sixty , 855 F.3d 115 (2d Cir. 2017), affirming a determination by the National Labor Relations Board (the NLRB) that an employee who directed obscenities at an employer over social media did not lose NLRA protections associated with union-related activity. The court recognized that certain conduct could be so "opprobrious" that it loses the protection of the NLRA. Here, the court ruled that the conduct at issue, while "at the outer-bounds" of protected speech, did not cross the line as unduly opprobrious. In so ruling, the court focused on three key factors that informed its analysis, including the fact that the comments were made on social media.

Employees Regarded As An Untreated Alcoholic May State A Disability Claim

Makinen v. City of New York, ____F.3d____(2d Cir. May 23, 2017), is an important case to be aware of. Technically, the decision certifies the question to the NY Court of Appeals whether an employee regarded as being an untreated alcoholic can state a claim for discrimination under the NYC Human Rights Law. However, in doing so, the court summarizes the law and states that such an individual can bring a claim under federal and NYS law. The court also reviews the relevant statutes and explains that the NYC Human Rights law is often more liberally interpreted than its federal and state counter-parts.

Judge Orders In Camera Inspection In Response to FOIL Request

Matter of Felicio v.  Connetquot Central School District, ____Misc. 3d____(Suffolk Co. May 3, 2017),  is an interesting case concerning the Freedom of Information Law. The President of the teacher's union sought email correspondence between certain District administrators. The Board complied by supplying a redacted copies of the emails. The employer claimed that the redaction was necessary to protect the privacy interests of certain employees and to protect inter-agency documents which were not final decisions. FOIL, of course, is not absolute, and these are two of the exceptions to mandatory disclosure of documents.

The court held that it could not make a determination as to whether the documents were exempt from disclosure and ordered an in camera inspection of the documents so that the court could review the entire set of documents. As the court explained:

It is undisputed that respondent's assertion of exemptions requires a, specific and particularized showing to be successful. As noted above, this Court reviewed the redacted documents produced by respondent. However, the redactions and the subject matter which respondent has sought to protect loom large in this Court's analysis. Contrary to respondent's contention against in camera review of FOIL disclosure, our appellate courts have repeatedly cautioned that the proper procedure for respondent to sustain its burden of establishing concrete support of asserted exemptions in the abstract is to submit the records in question for in camera inspection by the court (see Matter of Gould v. 984 New York City Police Dept., 89 NY2d at 275, Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131 , 133 [1985); Matter of M. Farbman & Sons v. New York City Healtlt & Hosps. Corp., 62 NY2d at 83;Miller v New York State Dept. of Tran.'ip., 58 AD3d 981, 983- 84, 871 NYS2d 489, 493 [3d Dept 20091; see also Thomas v New York City Dept. of Educ. , 103 AD3d 495, 499, 962 NYS2d 29, 33 [1st Dept 20131 [ matter should be remanded to the article 78 court for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed]). 

Transgender Employee States A Claim For Discrimination Under the ADA

Blatt v. Cabela Retail, ____F. Supp. 2d ____(E.D.Pa. May 18, 2017), is a major decision concerning the rights of transgender employees. The decision appears to be one of first impression.The Plaintiff alleged that she was terminated in violation of Title VII because of her sex and in violation of the ADA. We focus here on the ADA because the court refused to grant the employer's motion to dismiss and held that the Plaintiff plausibly stated a cause of action.

Of significance is that the ADA EXCLUDES from protection under the statute, "gender identity disorder" and that was the basis of the employer's motion to dismiss. The court, however, read this term narrowly and stated that it refers to condition of identifying with a different gender and that Congress did not intend to exclude from coverage disabling conditions that persons who identify with a different gender may have that substantially limits major life activities of interacting with others, reproducing and occupational functioning.

A New York Law Journal article about this decision is available here.

Employees who leave due to compelling family reasons are eligible for unemployment

Matter of Derfert v. Commissioner of Labor, ____A.D.3d____(3d Dep't. May 18, 2017), is an interesting decision concerning unemployment.
To be eligible for unemployment benefits, the former employee must be ready and willing to work.
But, what if your unavailable because of domestic violence? It turns out that because of a law that was enacted, that individual would be eligible for unemployment. As the court stated:

When the provision was amended to its current form in 2009 (see L 2009, ch 35, §§ 1, 2), the legislative intent remained to ensure that "individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits" (Senate Introducer Mem in Support, Bill Jacket, L 2009, ch 35, §§ 1, 2). The Board credited claimant's uncontroverted account that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend (compare Matter of Okumakpeyi [Commissioner of Labor], 295 AD2d 828, 829 [2002]; Matter of Downie [Commissioner of Labor], 288 AD2d 638, 639 [2001]; see generally Matter of Buckley [Bethlehem Steel Corp.—Catherwood], 31 NY2d 950, 951 [1972]).
To conclude, as did the Board, that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law § 593 (1) (b), is "unavailable" for or unwilling to work and, therefore, ineligible for unemployment insurance benefits under Labor Law § 591 (2) contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits. Accordingly, we find that claimant should not have been found to be ineligible for unemployment insurance benefits due to unavailability.

Discharge of Tenured Teacher is Sustained, But Could The Teacher Have Done Something Different?

Morales v. NYC Department of Education, ___A.D.3d___(3rd Dep't. May 11, 2017), is an example of a typical decision sustaining the decision of a Education Law 3020-a Hearing Officer which terminated a tenured teacher's employment. I bring the below language to your attention:

The penalty of termination does not shock the court's sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234 [1974]), given petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by respondent, and her refusal to acknowledge her shortcomings (see Davis, 137 AD3d at 717). (emphasis added).

In my experience most courts and Hearing Officers recognize that teachers and other public employees are human and can make a mistake. Sometimes if they acknowledge their error, a teacher can save her job. Of course, if the teacher or other employee admits to the mistake, they are essentially admitting to the misconduct.

Would the result be different in this case?? We will never know. Also, maybe there was nothing for the teacher to admit to because she did nothing wrong. Maybe the Hearing Officer and the court got it wrong. That happens too. Our system is far from perfect.

Major Law Firm Subject to Sex Discrimination Suit

The New York Law Journal recently reported that a partner at a major law firm suit her firm for discrimination, here. A copy of the complaint, which was filed in the District of Columbia, is available here.
I bring this case to your attention because it presents an interesting legal issue of whether a partner can bring a claim under employment discrimination and other statutes designed to protect "employees". Though not stated in the article, that is likely an issue that is going to be raised.
I wrote a law review article on a similar topic a few years ago. You can download a copy of my article by clicking here.

NYS Divsion of Human Rights Cannot Investigate Broad Policies Without Providing Notice

Matter of MTA Bus Co. v. NYSDHR, ____A.D.3d ____(3rd Dept. May 16, 2017), is an interesting case to be aware of. While investigating an individual case of employment discrimination, the NYSDHR went on to examine certain employer policies which it found to be discriminatory. The problem is that NYSDHR did not give the employer the opportunity to be heard with respect to those employment policies. As the court stated:

The record demonstrates, and respondent determined, that the complainant, a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder, namely, his reckless driving record, and that petitioner was justified in terminating him based on his conduct in vandalizing three buses in passenger service. Respondent awarded the complainant no damages. However, rather than dismissing the complaint, it proceeded to conclude that "[b]ecause [petitioner] has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [petitioner] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [petitioner's] policy violates the Human Rights Law." In making this determination without notice to petitioner that its policies were going to be reviewed, respondent denied petitioner its right to due process. While, upon its own motion, respondent may investigate and file a complaint alleging discriminatory practices (Executive Law §§ 295[6][b]; 297[1]), it did not do so here. It could not, while investigating the bus operator's complaint, which was filed solely on his behalf, find that he had not been discriminated against "and at the same time, make broad findings and impose broad sanctions pertaining to petitioner['s] over-all operations"

Supremes Hold That Arbitration Agreements Must Be Treated Like Any Other Contracts

In Kindred Nursing Home v. Clark, ___U.S.___(May 15,2017), the Supreme Court, once again, treated agreements to arbitrate in a favorable fashion.
At issue was whether an individual with power of attorney, could enter into an arbitration agreement. The Kentucky Supreme Court said no, but the U.S. Supreme Court reversed, reasoning in part:

The Act’s key provision, once again, states that an arbitration agreement must ordinarily be treated as “valid, irrevocable, and enforceable.” 9 U. S. C. §2; see supra, at 4. By its terms, then, the Act cares not only about the “enforce[ment]” of arbitration agreements, but also about their initial “valid[ity]”—that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. 

Justice Thomas wrote an interesting dissent where he stated that he would hold that the Federal Arbitration Act does not apply in state courts.

NYC Freelance Act Goes Into Effect

Local Law 140 of 2016 takes effect on May 15, 2017.
NYC's web site  describes this new statute as follows:

The law establishes and enhances protections for freelance workers, specifically the right to: •    A written contract•    Timely and full payment•    Protection from retaliation
The law establishes penalties for violations of these rights, including statutory damages, double damages, injunctive relief, and attorney’s fees. 
Individual causes of action will be adjudicated in state court. 
Where there is evidence of a pattern or practice of violations, the Corporation Counsel may bring civil action to recover a civil penalty of not more than $25,000. 

The Press Release the Mayor signed when the law was enacted is available here.