President Trump Nominates Marvin Kaplan to the NLRB

On or about June 20, 2017, President Trump nominated Marvin Kaplan, a Republican as a Member of the NLRB. Kaplan is currently an attorney with the Occupational Safety and Health Review Commission. If confirmed, the NLRB would be composed of two Democrats and two Republicans. President Trump is expected the fill the 5th seat with a Republican which would give the Republicans a majority vote-the first since 2007. A Washington Post article about this appointment is available here.

As students of labor law all know, NLRB law often changes when the composition of the Board changes. Presidential elections matter- and they really matter in labor law.

Interesting Article on the "Gig Economy"

As the title implies,  Lazar,  The Gig Economy: A Threat to Basic Employment Rights, NYLJ (May 1, 2017) (registration required), is an interesting article about the "gig economy." The gig economy is defined by the author as a "work model in which individuals provide services, supposedly at their own direction, for corporations and small businesses which serve as online marketplaces that connect these service providers with clientele." The classic example is Uber. 

Traditional employment law only protects employees and there is significant litigation addressing whether such individuals are employees or independent contractors. But, even non-employees need workplace protections. As the article states:

Worker advocates are in a precarious position wherein they not only are protecting workers from misclassification and the evasion of employer's obligations, they must also protect existing jobs from being replaced by outsourcing or robots. Having jobs is critical, and in fact this sentiment has prevented many Americans from enforcing their rights and calling upon their legislators to pass stricter laws in the workplace. However, that is the same mentality that caused the Triangle Shirtwaist Factory Fire in 1911, the deadliest industrial disaster in U.S. history, which killed 146 workers, mostly women and children. These horrendous working conditions were allowed to flourish in New York factories because of the desperate need for the unemployed and disenfranchised to earn a dollar, irrespective of their safety and workplace rights.
This and other workplace tragedies ushered in reforms that tempered the unbounding desire for growth by the companies of the Industrial Revolution with the need to protect their workers. The gig economy's recent boom requires us to revisit the same questions. . .

Hensel v. City of Utica, ____F. Supp. 2d ____(N.D.N.Y. June 14, 2017) (NYLJ registration required), is an interesting decision decided under the Americans with Disabilities Act. The court holds that diabetes is a disability under the ADA and approved of the EEOC's position in that regard, reasoning:

According to the EEOC, "the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage [under the ADA]." 29 C.F.R. §1630.2(j)(3)(ii). As an example of such an impairment, the regulations point to "diabetes[, which] substantially limits endocrine function." Id. §1630.2(j)(3)(iii). Diabetes is the kind of impairment that, by the EEOC's lights, should "easily" be found to constitute an ADA-qualifying disability. Id. The reason is that the ADA now requires courts to evaluate whether an impairment "substantially limits a major life activity…without regard to the ameliorative effects of mitigating measures." 42 U.S.C. §12102(4)(E)(i); 

NYC Teacher Awarded Tenure By Estoppel Even Though She Was In Rubber Room

Wilson v. Board of Education, ___Misc. 3d____(N.Y. Co. June 12, 2017), is an important decision to be aware of which addresses tenure by estoppel. Tenure by estoppel, aka by operation of law, occurs when a teacher or other public employee works past their probationary period and the public employer does not act to either grant tenure, terminate the employee or extend the employee's probation with what is known as a Juul agreement.
But, what if the Board continues to employ the teacher and simply assigns her to a rubber room and she does not work. This decision holds that the teacher is entitled to tenure by estoppel because the Board could have taken action and didn't.

SDNY Grants Rare Interloctory Appeal

Interloctory appeals in the 2d Circuit are disfavored in the Second Circuit. Chen-Oster v Goldman Sachs, ___F. Supp. 2d____(S.D.N.Y. June 14, 2017), is a rare example of it being granted. The merits of the case involved employment discrimination and there were open legal questions that the Second Circuit has not yet addressed. Specifically, whether a former employee can see  injunctive and declaratory relief when she did not initially seek it. There were other issues involving Title VII remedies involved in this case as well.

Notices of Claim Required in Federal Courts

Matter of Keles v.  Yearwood, ____F. Supp. 2d____(E.D.N.Y. May 25, 2017), is an important decision to be aware of. It reminds us that Notices of Claim for state law claims against a public employer are required in federal court. This case also holds that state law discrimination are not torts and therefore, Notice of Claim provisions applicable torts are not applicable.

Importance of Remorse In Employee Discipline Cases

I bring Matter of Vagianos v. City of New York, ___A.D.3d___(1st Dept. June 13, 2017) to your attention to illustrate an important point.
Most arbitrators and judges are human. If an employee, in this case a tenured teacher, admitted that he made a mistake and showed remorse, he or she may have a better chance of saving his or her job.
In rejecting the argument that dismissal of a tenured teacher shocked the courts conscience, the court stated:

Moreover, petitioner showed neither remorse for his conduct nor any appreciation of its seriousness so as to suggest that he would not engage in similar conduct again (see e.g. Matter of Varriale v City of New York, 148 AD3d 650 [1st Dept 2017]). Indeed, petitioner failed to take responsibility for the misconduct for which he had previously been disciplined, and was not deterred by that discipline from continuing his pattern of inappropriate behavior.

There is of  course, a major problem with showing remorse. That remorse will make a guilty finding very likely. Would the result have changed in this case? We will never know.

As most of you know, there are two issues in employee discipline; guilt and penalty.  If the employee shows remorse, a guilty finding becomes very likely, but it may help him or her with respect to penalty. But, if the employee is truly innocent, he or she cannot show remorse. That Catch 22 is inherent in the process.

Arbitration Over Retiree Health Insurance Stayed

Retiree health insurance is becoming more and more expensive and for a number of years employers have tried to cut back. Matter of County of Monroe v. CSEA, ___A.D.3d___(4th Dept. June 9, 2017), is just one recent example of litigation.
There retirees retired under a CBA that provided that claims concerning retiree health insurance were not subject to arbitration, but years later a new CBA indicated that such claims were arbitrable. The problem is that the plaintiffs retired under the old CBA and therefore, they could not arbitrate their claim. As the court explained:

 We conclude that the court properly determined that the parties did not agree to refer to arbitration the retiree health benefit disputes of those who retired prior to January 1, 2000. The grievance clause in the 1994-1999 CBA specifically excludes retirement benefits from the grievance and arbitration procedure (cf. Matter of City of Niagara Falls [Niagara Falls Police Club Inc.], 52 AD3d 1327, 1327).

Petition For Cert Filed In Agency Fee Case

On June 7, 2017, a cert petition was filed in Janus v. AFSME, ____F.3d____(7th Cir. March 21, 2017)(Posner, J.). This case squarely addresses whether agency fees violate the First Amendment and whether Abood v. Detroit Board of Education, 431 U.S. 209 (1977), remains good law. SCOTUS blog contains a good summary of the law and provides in part:

It is settled law that public employees who do not belong to the union that represents them cannot be required to pay fees that the union would use for political activity like union organizing. But in 1977, the Supreme Court ruled that public employees who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. That decision, in Abood v. Detroit Board of Education, turned 40 last month. But if an Illinois state employee, Mark Janus, has his way, Abood may not survive to see 41. Yesterday Janus asked the Supreme Court to overrule that decision and hold that requiring an unwilling employee to pay even this more limited fee violates the First Amendment. If the court agrees to weigh in, as it is likely to do, its ruling could affect not only the financial health of public-employee unions, but possibly even politics more broadly. And its decision could also be one of the first tangible and significant signs of the impact of the 2016 presidential election on the Supreme Court.

School and Residence Are Joint Employers Under the FLSA

Murphy v. HeartShare Human Services, ____F.3d____(2d Cir. June 1, 2017) (NYLJ registration required), discusses joint employment under the FLSA. The case is like a treatise of FLSA law and is full of regulatory and case citations. Plaintiff worked at both a special needs school and at the residences. Plaintiff claimed that he was jointly employed and therefore, entitled to overtime when he worked more than 40 hours. The employer, however, claimed that plaintiff was separately employed by each entity. In finding a joint employment relationship, the court stated in part:

All plaintiffs' allegations, taken together, are more than sufficient to make out a claim that defendants are so interconnected in their operations that they should be considered to be joint employers for purposes of overtime liability. See Flannigan v. Vulcan Power Grp., LLC, 642 F. App'x 46, 52 (2d Cir. 2016) (finding that a jury verdict of joint employment based in part on (1) employers operating out of the same office, (2) sharing at least one administrative employee, and (3) being controlled by the same officer was not manifestly unjust); Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298, 305-06 (4th Cir. 2006) (finding that "the entire employment arrangement fits squarely within the third example of joint employment in [29 C.F.R. §791.2(b)]" because the employers were both involved in the hiring of the workers; played some role in scheduling, discipline, and terminations; and shared responsibility for supplying the workers with equipment).
It is difficult to see how two employers which were in part created to serve the same clients, are headquartered at the same address, physically operate out of the same address, share employees, share an accounting and human resources department, require employees to perform
tasks that simultaneously benefit both employers, and share a name — HeartShare — are "completely disassociated" with respect to plaintiffs' employment.