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.

NYC Outlaws Salary Inquires

New York City Bans Employers' Inquiries Into and Use of Salary History is an interesting June 6, 2017 article from the New York Law Journal which discusses a NYC Local that that is effective Oct. 31, 2017. The article describes the law in part as follows:

Like the Philadelphia ordinance, New York City's ordinance provides that employers may not "inquire about" or "rely on" a prospective employee's salary history. See N.Y.C. Admin. Code §§8-107(25)(b)(1)-(2). Although the new law speaks in terms of "salary history," it defines "salary history" broadly to "include[] the applicant's current or prior wage, benefits or other compensation," but explicitly excludes "any objective measure of the applicant's productivity such as revenue, sales, or other production reports." Id. §8-107(25)(a). Making an "inquiry" is defined broadly as "communicat[ing] any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history." Id. The law's definition of "inquiry" also includes "[conducting] a search of publicly available records or reports for the purpose of obtaining an applicant's salary history." Id.
This prohibition does not extend to "informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range," which is expressly excluded from the definition of "inquiry." Id. Additionally, employers may "engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation," which includes discussion of "unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer." Id. §8-107(25)(c).
Furthermore, employers may not "rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant." Id. §8-107(25)(b)(2). This prohibition applies "during the hiring process, including the negotiation of a contract." Id. This prohibition is not absolute. The law contains a carve-out permitting an employer to use a prospective employee's wage history in determining his or her compensation in circumstances where the prospective employee offers the information "voluntarily and without prompting." See §8-107(25)(d). In such a case, the employer may verify the salary information provided by the prospective employee. Id. However, the law does not define what constitutes "voluntarily," thus leaving open the possibility of subsequent challenges as to whether any purported consent was truly "voluntary."

Arbitration is Compelled in an FLSA and NYS Labor Law Overtime

Moise v. Family Dollar Store, ____F.Supp. 2d____, No. 16-CV-631, NYLJ June 7, 2017 (S.D.N.Y. 2017), is an interesting decision.

• A supervisor/Shelf Stocker claimed that he was unlawfully denied overtime pay under the FLSA and New York law. Significantly, however, during his on line drawing he was required to accept an arbitration agreement. The employee downloaded this agreement and checked a box that he accepted it. 
• The court rejected the argument that there was no valid agreement to arbitrate because the employee did not remember accepting this agreement. The court also rejected the claim that the agreement was unconscionable because that is for the arbitrator to decide, reasoning:

• Under Rent-A-Center, Moise's unconscionability claim is for the arbitrator to decide. The Agreement provides that "any claim or controversy regarding the Agreement['s]…unconscionability" shall be "decided by an arbitrator through arbitration and not by way of court or jury trial." Broel Decl. Ex. B (boldface omitted). This provision plainly delegates a claim of unconscionability to the arbitrator. Moise did not, however, direct his unconscionability claim to the delegation provision specifically — indeed, Moise's opposition brief does not mention the delegation provision at all. See Pl.'s Opp'n Mem. at 9-12. Moise's failure to direct his attack at the delegation provision is particularly striking because, while his brief quotes from other sections of the Agreement, see id. at 10, it is the delegation provision that specifically addresses the "unconscionability" argument he advances here, Broel Decl. Ex. B. Because Moise's unconscionability claim falls within a provision delegating this claim to the arbitrator, and because Moise did not specifically challenge this provision, the Court must enforce the delegation provision and refer the question of unconscionability to the arbitrator. See Rent-A-Center, 561 U.S. at 71-72; see also, e.g., Philippe v. Red Lobster Rests. LLC, No. 15-CV-2080 (VEC), 2015 WL 4617247, at *4 (S.D.N.Y. Aug. 3, 2015) (granting a motion to compel arbitration where the opposing party did not challenge a delegation provision that "plainly encompass[ed]" his claim).

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Police Officer Summarily Terminated For Growing Marijuana Reinstated

Matter of City of Buffalo v. Buffalo PBA, ____A.D.3d___(4th Dept. June 5, 2017), demonstrates the importance of following termination procedures set forth in a collective bargaining agreement. The Commissioner summarily terminated a police officer after he learned from federal authorities that this police officer allegedly confessed to  to having operated a marijuana "grow operation" prior to and after his becoming an officer. Significantly, however, the employer did not comply with the procedures set forth in the CBA, which among other things, required a hearing after charges. The court rejected the argument that reinstatement violated public policy, reasoning in part:

 The court properly determined that petitioner's proffered public policy considerations do not preclude the relief granted by the arbitrator. Petitioner's arguments in that regard constitute little more than vague considerations of a general public interest, which are insufficient to support vacatur of the award. . . .Although the underlying facts render the size of the award distasteful—over two years of back pay for a police officer who allegedly confessed to committing crimes both before and after becoming a police officer—"[o]ur [public policy] analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible" (New York State Corr. Officers & Police Benevolent Assn., 94 NY2d at 327). We note, in this instance, that had the due process procedures of the CBA been followed, the likelihood would have been greatly diminished that the officer would have received as large an award for back pay as he did here.

No Recording Policy Violates NLRA

Whole Foods Markets v. NLRB, ____Fed. Appx.____(2d Cir. June 1, 2017) , is an important labor and employment case. Whole Foods, according to a NY Law Journal article, had a Handbook personnel policy which prohibited employees from taking audio or video recordings of "conversations, images, phone calls or company meetings" without prior approval because they "inhibit spontaneous and honest dialogue. A copy of the NYLJ article is available here. 

The NLRB and the Second Circuit held that they policy violated NLRA Section 7 rights of employees to engage in concerted activities. As the court explained:

Whole Foods’ attempt to separate the act of “recording” from conduct falling within Section 7’s protection ignores that its policies prohibit recording regardless of whether the recording is in relation to employees’ exercise of their Section 7 rights. See Rio, 362 N.L.R.B. No. 190, slip op. at 2. As written, those policies prevent “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules” without management approval. Id., slip op. at 4. 

Moreover, despite the stated purpose of Whole Foods’ policies—to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could “chill” an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert. See Lafayette Park Hotel, 326 N.L.R.B. at 825. The Board’s determination in that regard was in accordance with law.