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Archive for the ‘Employment Law Blog – NC’ Category

Farmworker Union Sues to Overturn NC Law That Nixes Dues Checkoff and Voids Agreements Requiring Farmers to Sign Union Contracts

Posted on: November 20th, 2017

By: Paul H. Derrick

For years, the Farm Labor Organizing Committee, a small Ohio-based union that is the only labor organization representing farmworkers in the State of North Carolina, has used actual and threatened lawsuits as a means of getting farmers in the state to voluntarily recognize and bargain with it. The state’s Farm Act of 2017 contains provisions aimed at stopping that coercive tactic, and FLOC is making good on its promise to fight back.

The Farm Act makes it a violation of the state’s public policy for farms, most of which are small, family-owned operations, to collect membership dues from employees and forward them along to a union, even if the union and the farm have executed a collective bargaining agreement that requires such dues collection. The law also makes it a violation of public policy for a union to require that a farm enter into a union contract as a means of settling a lawsuit or avoiding litigation in the first place.

Represented by civil rights lawyers from the American Civil Liberties Union, the Southern Poverty Law Center, and the North Carolina Justice Center, the union and two individual migrant farmworkers, both of whom previously brought legal actions against their non-union employers, have filed a lawsuit in federal court against Governor Roy Cooper and the director of the North Carolina court system. The lawsuit claims that the Farm Act impedes their First Amendment right to participate in union activity and is racially discriminatory (i.e., because most of the state’s farmworkers are Latino). It demands that the court declare portions of the Farm Act to be unconstitutional and also asks that preliminary and permanent injunctions be entered to restrain state officials from enforcing those provisions of the law.

North Carolina farmers employ about 100,000 workers annually, and FLOC claims to have almost 5,000 dues-paying members among that workforce. Because there are no federal or North Carolina laws that give agricultural workers a right to demand a union election, FLOC insists that the only way it can organize workers is by actual or threatened lawsuits over issues such as alleged wage and hour violations, where part of the settlement demanded includes farmers voluntarily recognizing the union as the bargaining representative of their employees and collecting dues from the workers on behalf of the union.

A copy of FLOC’s lawsuit can be found here. We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Paul Derrick at [email protected].

NLRB Tells Appellate Court that Racial Harassment by Picketers is OK

Posted on: November 1st, 2017

By: Paul H. Derrick

The National Labor Relations Board is urging the full Eighth Circuit Court of Appeals not to review a 2-1 panel decision that found a union picketer’s racially derogatory comments toward black replacement workers to be protected speech that could not be used as grounds for his termination. Although admitting that the picketer’s comments to the black workers were offensive, the NLRB stated that the comments simply were not vile enough to lose the protections of the National Labor Relations Act.

The comments in question included the picketer yelling “Did you bring enough KFC for everybody?” toward a van carrying replacement workers and asking if other picketers could “smell fried chicken and watermelon.” Based on those and other comments, the employer elected not to return the picketer to work after its labor dispute with the union ended. The union filed a grievance on the picketer’s behalf, and an arbitrator ruled that the company had just cause to fire him.  An NLRB administrative law judge and the NLRB itself disagreed, however, and ordered that the worker be rehired and given back pay and benefits.  According to the NLRB, the racially derogatory remarks, although directed at minority workers confined in a vehicle that was crossing a hostile picket line, were non-violent and non-threatening offhand comments that would not objectively be perceived as coercive or intimidating.  In other words, they merely reflected the picketer’s animal exuberance.

In its initial appeal to a three-judge panel of the Eighth Circuit, the company argued that bringing back the picketer would conflict with its obligation under Title VII of the Civil Rights Act to eradicate racial harassment in the workplace. In a split decision, two of the panel’s judges ruled that the racial taunting did not create a hostile work environment, was not violent in character, did not contain any overt threats to the replacement workers, and was not accompanied by acts of physical intimidation.  The third judge ruled that the picketer’s termination should stand, reasoning that no employer in America can be required to allow racial bigotry in the workplace.

Whether the NLRB will prevail in its position that picket line racial harassment is an exception to the general rule that such workplace misconduct is absolutely prohibited remains to be seen.  In the meantime, employers should be aware that the NLRB has taken this same position many times over the years, although not all courts agree with it.  Until the U. S. Supreme Court gives more definitive guidance on the issue, there likely will be continued disagreement well into the future.  These cases generally rise and fall on their own unique and specific facts, so there is no one-size-fits-all answer as to how a particular case will be seen by the NLRB or the courts.

If you have any questions or would like more information about this or any other labor law issue, please contact Paul H. Derrick at [email protected].

 

EEOC Lawsuit for Disability and Genetic Information Discrimination is Cautionary Tale for Employers

Posted on: September 28th, 2017

By: Paul H. Derrick

The Equal Employment Opportunity Commission is seeking back pay, compensatory damages, punitive damages, and injunctive relief against one of the nation’s largest retailers for withdrawing job offers to applicants whose post-offer medical examinations revealed they had disabilities. The lawsuit also alleges that the post-offer medical examinations unlawfully solicited family medical history from those job applicants.

In the lawsuit, the EEOC alleges that an applicant received a job offer contingent on successfully completing the company’s post-offer medical examination. When the employee revealed during the examination that he suffered from monocular vision, medical personnel informed him that the company required applicants have corrected 20/50 vision or better in both eyes. Despite successfully having performed similar work in the past, the employee’s job offer was rescinded.

The EEOC also claims that the company screened out people with high blood pressure and a variety of other conditions, even though the impairments would not prevent the individuals from performing the jobs they had already been offered. During the post-offer medical examinations, applicants were asked to provide detailed information about their family medical history, including answering questions about cancer, heart disease, and diabetes.

Regardless of the outcome of this lawsuit, employers should see it as a reminder that the Americans with Disabilities Act prohibits the use of selection criteria or qualification standards that screen out individuals with disabilities unless those standards are job-related or consistent with business necessity. Post-offer medical examinations are not automatically unlawful, but they cannot be used to weed out individuals with disabilities.

Likewise, the Genetic Information Nondiscrimination Act protects employees or job applicants from discrimination based on genetic information. GINA includes a strict prohibition against soliciting a job applicant or employee’s family medical history.

If you have any questions or would like more information, please contact Paul Derrick at [email protected].

NLRB’s General Counsel Says Nonunion Workers Should Have Representation Rights During Investigative Interviews

Posted on: September 13th, 2017

By: Paul H. Derrick

IMG_0655The National Labor Relations Board is at it again. A recently-released memorandum from the Board’s Division of Advice reveals that the Office of the General Counsel directed one of the NLRB’s regional offices to issue two complaints against an employer for refusing to allow nonunion workers to have a representative of their choosing accompany them to investigative interviews. The memorandum explains that the complaints should then be litigated in hopes of getting the five-member NLRB to reverse current law and extend so-called Weingarten rights to nonunion workplaces.

Weingarten rights stem from a 1975 U.S. Supreme Court case in which the justices ruled that unionized workers have a right to request a union representative’s presence at any investigative interview that reasonably could result in disciplinary action. The NLRB has flip-flopped over the years, depending on which political party was in power, about whether Weingarten rights apply in a nonunion workplace. In 2000, it ruled that nonunion workers had a right to representation during investigative interviews. In 2004, it reversed course, noting that nonunion co-workers, friends, and third-parties had no place in the process because they do not represent the collective interests of the workforce and they lack the advisory and negotiating skills of trained union stewards.

The recent General Counsel memorandum says that the NLRB simply got it wrong in 2004 because it failed to take into account the importance of employee solidarity as a fundamental labor law principle. “When one employee supports another…including being present in the investigatory interview of a coworker that might result in discipline, there is an implicit promise of future reciprocation and it does not matter whether those acting in solidarity represent any other employee’s interests. … It is enough that one employee has made common cause with another.” The memorandum went on to say that a nonunion employee who requests Weingarten representation should be entitled to the representative of his choice, as long as that choice does not cause undue delay in the investigation.

Whether the NLRB will actually address nonunion Weingarten rights anytime soon is far from certain. Earlier this year, it unanimously denied a petition requesting that it use its rulemaking power to simply mandate that all nonunion employees be afforded Weingarten rights. Also, the two cases addressed in the General Counsel’s memorandum could be resolved through a settlement, in which case the NLRB itself would not be presented with the issue.

We will continue to keep you apprised of developments in this area as they occur. In the meantime, if you have any questions or would like more information, please contact Paul Derrick at [email protected].

EEOC to Employers (Again): The FMLA Does Not Trump the ADA

Posted on: September 7th, 2017

By: Paul H. Derrick

Family-and-Medical-Leave-Act[1]The Equal Employment Opportunity Commission has sued an employer in Hawaii over its refusal to provide additional leave time as an accommodation for disabled employees who were unable to return to work without limitations after exhausting all of their FMLA leave. The lawsuit is certainly not the first of its kind, and it underscores an issue that too many employers seem to either ignore or misunderstand.

According to the EEOC, the employer in this latest case maintained a rigid leave policy under which employees with disabilities were not granted any additional leave of absence as a reasonable accommodation beyond the required 12 weeks under the Family and Medical Leave Act. Instead, they were required to return to work without limitations at the end of that leave. Those who could not were terminated. The lawsuit seeks back pay and benefits, along with compensatory and punitive damages for one named employee and a class of aggrieved individuals, as well as injunctive relief intended to prevent any future discrimination in the workplace.

The EEOC and many courts have long taken the position that inflexible leave policies violate the Americans with Disabilities Act because the ADA requires employees to engage in an interactive process with disabled employees who ask for reasonable accommodations that are likely to enable them to return to work. Sometimes, an additional period of leave, although not an indefinite one, can be a reasonable accommodation, and employers who refuse to consider that option do so at their own peril. Maintaining a rigid leave policy such as the one alleged in this new lawsuit can be seen as unlawful disability discrimination because the employee may be denied a reasonable accommodation that would enable them to return to work.

Employers have different obligations under the FMLA and ADA, and meeting the FMLA obligations by providing 12 weeks of protected leave does not meet the ADA’s requirement that an employer consider reasonable accommodations, when requested. Again, an additional, limited period of leave may be a reasonable accommodation, depending on the circumstances.

Employers also should be aware that this issue is not likely to go away any time soon. Addressing disability discrimination in the form of inflexible leave policies is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan, so we can expect more cases like this one in the future.

If you have any questions or would like more information, please contact Paul Derrick at [email protected].