Patterson Harkavy LLP » Labor and Employment

NLRB to Speed up Unionizing Elections

Andrew — Tue, 03 Jan 2012 19:28:29 +0000

On December 21, The National Labor Relations Board voted 2-1 in favor of new steps to increase the speed of union elections. The Board hopes to keep election and campaign time to less than 21 days. Often, there are long delays to unionizing elections because of legal challenges brought by the employer. The Board wants to require that these challenges be postponed until after the employees have voted for or against the union. These changes were first proposed in June and the NLRB held public hearings and reviewed thousands of public comments. The new rules will likely be challenged by employers in court. More coverage here.

This was the Board’s last major policy decision before it lost one member, which leaves it without a quorum to act. President Obama has nominated Sharon Block and Richard Griffin to the Board. Ms. Block is currently deputy assistant secretary of Congressional affairs with the Labor Department. Mr. Griffin has served on the board of the AFL-CIO Lawyers Coordinating Committee since 1994 and is general counsel to the International Union of Operating Engineers. Republicans may well block these nominations in an effort to prevent the Board from functioning at all. More coverage here.

Congress Extends Unemployment Benefits for Two Months

Narendra Ghosh — Mon, 02 Jan 2012 19:25:45 +0000

Shortly before Christmas, House Republicans finally gave in and sensibly agreed to the two-month extension for extended unemployment benefits. When Congress returns after recess, debate will resume on whether to further continue the vitally needed unemployment insurance programs. For more information on North Carolina’s Extended and Emergency Unemployment benefits, see the Division of Employment Security’s site, here.

Republicans Still Blocking Extended Unemployment Benefits

Andrew — Wed, 21 Dec 2011 22:35:18 +0000

The House and Senate still have not come to an agreement on extending unemployment benefits for jobless workers. The federal unemployment provisions for emergency and extended benefits are set to expire during the first week in January. The U.S. Labor Department estimates that 3.6 million jobless Americans will lose benefits by March if nothing is done to extend the federal program. Currently the states finance up to 26 weeks of jobless benefits with the federal government adding up to 73 weeks of benefits, totaling 99 weeks of possible unemployment benefits. The average unemployed workers is out of work for 41 weeks. Republicans in Congress seek to reduce the maximum total number of weeks to 59, add unreasonable eligibility requirements, and implement pervasive drug-testing of all unemployed workers. All of these proposals further prevent economic recovery, undermine the spirit of the unemployment system, and essentially tar the unemployed as drug addicts. Republican obstructionism and inaction has reached a critical point, and without action on these issues the nation will face even greater hardship than the Great Recession has already inflicted. More coverage here.

New Report Out on Economy and Young Workers

Andrew — Mon, 19 Dec 2011 22:20:06 +0000

The public policy research group Dēmos and the non-profit Young Invincibles, published a new report which came out last month. The report analyzes the economic status of the “Millennial Generation” as compared to previous generations. ”The analysis reveals the failure of public investment and public policy to provide young people with the means to achieve economic security and sustain the middle class.” The report can be found here.

Introduction to the Jobs and the Economy section:

“Our nation has experienced profound economic change over the last three decades. Globalization, new technologies, and deliberate public policies shifted our economy from the production of goods to the production of knowledge and services. As millions of unionized factory jobs moved overseas, our nation lost a primary source of middle-class jobs for people without college degrees. Less-educated workers now have few options outside of non-unionized, low-wage service occupations.”

Machinists’ Union and Boeing Work to Extend Contract

Andrew — Wed, 07 Dec 2011 15:00:39 +0000

Last, week, the International Association of Machinists and Aerospace Workers (IAMAW) and Boeing reached a tentative agreement which would extend the Union’s contract for four years and, when ratified, will increase wages, maintain and improve traditional pensions and add new jobs. The Union and Boeing have been in a troubled relationship recently since Boeing decided to build a new plant for its 787 Dreamliner in South Carolina where unions are weak. The National Labor Relations Board filed a suit claiming that Boeing had decided to build the new plant in South Carolina in illegal retaliation against the Union for striking. That case now looks like it may be dropped if the new contract is ratified by the Boeing employees. Additional coverage here.

US Supreme Court to Decide Important Wage and Hour Case

Andrew — Tue, 29 Nov 2011 22:01:49 +0000

Yesterday, the Supreme Court of the United States granted a writ of certiorari in Christopher v. SmithKline Beecham Corp. The Ninth Circuit’s opinion, now on appeal, can be viewed here. The issue was whether pharmaceutical sales representatives are “outside salesman” as referenced in Section 213(a) of the Fair Labor Standards Act and therefore exempt from legal overtime requirements. The Ninth Circuit Court of Appeals determined that the salespeople were exempt from overtime, thus refusing to defer to the Department of Labor’s regulations on this issue.

The Supreme Court has granted review on these issues:

“(1) Whether deference is owed to the Secretary of Labor’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.”

The petition for certiorari may be viewed here.

President Obama Signs Jobs Bill Helping Veterans

Andrew — Wed, 23 Nov 2011 15:00:55 +0000

President Obama this week signed into law the first portion of his jobs package. The bill, H.R. 674, which had vast bipartisan support, also known as VOW to Hire Heroes Act, creates tax incentives for companies to hire veterans, especially those who have been unemployed for more than six months and those with service connected disabilities. Though there has been very little action from Congress on the jobs front, this is an encouraging first step. Hopefully the House and Senate can get their act together and start really helping unemployed workers secure employment, and in doing so jump-start the economy. More on the bill here.

NC Court of Appeals Rejects Free Speech Retaliation Appeal

Andrew — Mon, 21 Nov 2011 21:59:07 +0000

The North Carolina Court of Appeals published a decision in a free-speech retaliation case in Ginsberg v. Board of Governors of the University of North Carolina. The plaintiff, who worked at NC State University as a teaching assistant professor, contended that the University had violated her First Amendment free speech rights by punishing her in a hiring decision in retaliation for her protected speech. On November 9, 2007, the plaintiff was reprimand by professors for purportedly showing bias during her introductory statements on a film that was being presented on the Israeli-Palestinian conflict. Just weeks later, the plaintiff was de-listed as a first-tier candidate for an open tenure track position, and some of the professors who had reprimanded her were on the search committee. Nonetheless, affirming the trial court’s grant of summary judgment, the Court concluded that the plaintiff had failed to present sufficient evidence of causation between her protected speech and the university’s hiring decision. The Court held that she had not supported her claim “beyond mere speculation.”

Fourth Circuit Affirms Protected Concerted Activity Claim

Andrew — Thu, 03 Nov 2011 14:00:43 +0000

The Fourth Circuit Court of Appeals recently decided NLRB v. White Oak Manor, a case involving an employee’s protected concerted activity, ruling in favor of the NLRB who sought to enforce an order in favor of the employee. The employee, who was reprimanded for wearing a hat during work in violation of the company dress code, spoke with other employees to gain support for her cause and eventually complained to management about unequal enforcement of the company dress code. The employee took pictures of other employees who were violating the dress code at work, showing tattoos and wearing hats. The employee enlisted other employees to help her document dress code violations as well. The employee was subsequently terminated. Management stated specifically that she had taken pictures of a particular employee without prior permission and in doing so she violated the company’s policy forbidding the misuse of an employee’s property. Defendant White Oak Manor contended that the employee had acted in her own self interest by complaining about the enforcement of the dress code policy.

The Court agreed with the NLRB in their assertion that the company had violated the National Labor Relations Act because the employee had talked to other employees about the policy and gathered evidence in support of her attempt to change the enforcement of the policy. Thus the employee was participating in protected concerted activity in an attempt to achieve equal enforcement of the policy. Equal enforcement of this policy would benefit all employees and the employee actively pursued coworkers support and help in changing the policy. The Court thus reached the common-sense conclusion that the employee’s actions did meet the standard in the NLRA for protected concerted activity.

Jon Harkavy Presents Annual Paper on SCOTUS Employment Law Decisions

Andrew — Mon, 24 Oct 2011 14:00:33 +0000

On October 21st, at the 27th Annual North Carolina/South Carolina Labor and Employment Law CLE held in Charleston, South Carolina, Jonathan Harkavy presented his 2010-11 annual review of the Supreme Court’s employment law cases. His paper is entitled “Supreme Court of the United States Employment Law Commentary, 2010 Term.” (Please download his article from here.)

Introduction: The 2010 Term of the Supreme Court of the United States put a spotlight on the significant – though oddly unheralded – role that employment law plays in our country’s economy and in our citizens’ daily lives. One of the nation’s keenest (and self-described “obsessive”) Court observers recently characterized this term as “straight-up dull.” Emily Bazelon, “Chamber of Pain,” The New York Times Magazine, p. 9 (August 7, 2011.) My own judgment, however, is that what the Justices did in the employment area was consequential, if not downright exciting. Through a number of employment-related cases, a cohesive and assertive majority of the Court fashioned the law to fit its socio-economic (if not overtly political) view that the employment relationship ought to be deregulated. In doing so, the Court continued to pursue what the Reagan revolution began and the Tea Party followers hope to complete. But more about that later. For Court observers of all political stripes, the 2010 Term’s smorgasbord of decisions provides a feast to be savored and debated for months to come.