Articles Posted in Et cetera

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On October 24, 2014, the District Court for the Eastern District of New York denied plaintiff Microtech Contracting Corp.’s request for an injunction prohibiting members of Local 78 from “‘[p]icketing, distributing handbills or flyers and/or posting an inflatable rat or similar sign or device at any job site’ where Microtech is working.” Microtech, an asbestos abatement company, argued that all of these activities violated the terms of the operative collective bargaining agreement (CBA).

The court decisively rejected most of the plaintiff’s case, finding (first) that it lacked jurisdiction to issue the injunction under the Norris-LaGuardia Act (NLGA) because the issue being protested–the continued employment of a certain manager–was “unrelated to the terms of the CBA,” and (second) that, with respect to the narrow question about the use of the inflatable rat, the only question remaining for the court to consider, the plaintiff could not show a likelihood of success on the merits.

Noting that Local 78 has a “constitutional right to use an inflatable rat to publicize a labor dispute,” the court determined that the central question at issue was whether this constitutional right was outweighed by the clause of the CBA in which the union agreed not to engage in “disruptive activity.” However, the court further noted, this same provision of the CBA, the “disruptive activity clause,” refers to activities such as “strikes, walkouts, picketing, work stoppages, slowdowns, or boycotts,” but the use of the inflatable rat does not involve any of these disruptive activities. The rat is disruptive, at most, in that Microtech’s business clients react negatively to it, but even if true this would not be the kind of disruption specified in the CBA.

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On June 23, 2014, Justice Hunter of the New York State Supreme Court issued a judgment and order in the Vanacore v. City of New York and New York City Administration for Children’s Services (ACS). In that case, petitioner Ralph Vanacore alleges that he was wrongfully terminated and seeks a judgment vacating ACS’s decision to terminate his employment and reinstating him to his position with back pay and benefits. His other request, which is more at issue in the present Court order, is that ACS reimburse him for all medical expenses he incurred as a result of being wrongfully terminated.

Prior to his termination, Vanacore had worked for ACS as a caseworker for over twenty years. He then suffered a job-related injury in April of 2012, after which he took approved medical leave. While on leave, he received a letter dated March 11, 2013 which indicated that he must “resolve his employment status.” To that end he was presented with several options: first, he could return to work with a doctor’s statement saying he was able to work, either with or without restrictions; second, if he could not return to work, he could file for social security or some other benefits; third, he could resign; or fourth, if he chose none of these first three options, he would be terminated. The letter referred to Section 71 of the Civil Services Law, which states that “…an employee who has been continuously or cumulatively due to a work-related injury absent for one year or more, may be separated from staff.”

Mr. Vanacore had been on worker’s compensation leave for almost one year when he received the letter. He then returned to work on April 15, 2013, and provided a doctor’s note saying he could work, but soon after returning he started another medical leave due to the same work-related injury. On June 24 he was again admitted to the hospital, where he stayed for two days. The next day, on June 25, the hospital informed him that he no longer had insurance coverage through his employer and would be responsible for paying all of his medical expenses himself. Only then did he learn that the City had, unbeknownst to him, terminated his employment effective June 14, 2013.

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On January 13, 2013, the National Labor Relations Board (« NLRB ») of the New York Branch office rendered its decision in the Boch Imports, Inc. case dealing with unfair labor practices brought by a union.

Respondent in this case, maintained and Employee Handbook containing certain rules and policies that the employees alleged violated Section 8(a)(1) of the National Labor Relations Act (« NLRA »). The union targeted the sections regulating “Confidential and Proprietary Information,” “Discourtesy,” “Inquiries Concerning Employees,” “Dress Code,” “Solicitation/Distribution,” and “Social Media.” For instance, the “Dress Code and Personal Hygiene” stated that: “employees who have contact with the public may not wear pins, insignias, or other message clothing which are not provided to them by the Company” and the “Courtesy” section stated: “all employees are expected to be courteous, polite and friendly, both to customers and to their fellow employees. The use of profanity or disrespect to a customer or co-worker, or engaging in any activity which could harm the image or reputation of the Company, is strictly prohibited.”

After a first consultation with the NLRB’s New York branch office, the Respondent changed most of the litigious provisions, with the exception of the “Dress Code Provision”, to the satisfaction of the region. Following this initial consultation, the Respondent issued a revised Employee Handbook in May 2013, containing the corrected provisions, and distributed the revised Handbook to all employees who received the prior handbook. Therefore the only provision that remained in dispute between the parties was the “Dress Code and Personal Hygiene Policy.”

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On December 24, 2013, the New Jersey Appellate Division issued its decision in the State of New Jersey v. Saavedra case. The Appellate Division upheld criminal charges against the Defendant who took hundreds of highly confidential original and copied documents, after being terminated from her employment as a school board clerk. Defendant claimed that she took those document for the purpose of supporting discrimination, whistleblowing, and other claims against her employer in her lawsuit.

In her complaint, the Defendant alleged that she was a victim of gender, ethnic, and sex discrimination. The complaint also alleged that the Plaintiff terminated Defendant’s son, who was working in the same school, son because Defendant spoke out about issues in the workplace regarding, pay irregularities, improper reimbursement for unused vacations, wrongful denial of unpaid family leave, violations of study team regulations and overall unsafe working conditions.

In this case, the Defendant claimed that he conduct constituted protected activity. Defendant used Quinlan v. Curtiss-Wright Corp., to argue that her actions were not criminally sanctionable because according to Defendant, this case establishes an absolute right for employees with employment discrimination lawsuits to take potentially incriminating documents from their employers. However, the Appellate Division Court disagreed with that reading of the case and stated that the Quinlan seven-part totality-of-the-circumstances test (the “Quinlan analysis“), to determine whether a private employer can terminate its employee for the unauthorized taking of its documents, should not be applied to the facts of the present case. The Court argued that “a criminal court judge is not required to perform a Quinlan analysis to decide a motion to dismiss an indictment charging a defendant with official misconduct predicated on an employment-related theft of public documents. Instead, the judge should apply well-settled standards regarding whether to grant such motions.” As a consequence, the State was required to introduce sufficient evidence before the grand jury to establish a prima facie case that defendant has committed a crime. This case shed light on the differences between protections available to an employee in a civil case and in a criminal case. Indeed, an employee who voluntarily takes confidential or non-confidential documents from his employer to use in a whistleblower or discrimination case may be protected in a civil case, but that same employee is not protected from being criminally prosecuted for stealing those documents from his employer.

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On January 1st, about thirty-seven stores across the state of Colorado were able to legally sell marijuana for recreational use for the first time, as a result of the state’s legalization and regulation of the drug pursuant to a law passed on November 2012. Many marijuana activists have celebrated the passage of this law as a great success for their efforts. However, employees must be aware that the new law includes a provision allowing employers to retain the ability to have policies restricting their employees’ use of marijuana.

Pursuant to Amendment 64 of the new law, employees opting to consume recreational marijuana in the privacy of their homes may be subject to dismissal by employers who decide to administer drug tests, despite the fact that Colorado allows for legal consumption of the drug. Because urine drug tests, which are the tests commonly used by employers, do not indicate when the drug was last ingested, a positive result does not allow employers to determine whether the drug was used during working hours or not. Under the Amendment, employers retain full discretion to establish their marijuana policies. As a result, employers having a strict no-drug policy may thus not care whether the employee consumed the drug during non-working hours and the law does not provide protections for employees.

Critics of this provision argue that Amendment 64 imposes a double standard because employees will face the risk of being penalized for consuming marijuana while off-duty, whereas they do not face this risk for consuming alcohol in the privacy of their homes. Furthermore, an employer may decide to fire an employee based on the results of a medical tests even where the employee’s off-duty activities do not affect his or her performance.

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The Securities and Exchange Commission (SEC) in a 3-2 vote proposed a new rule that would require public companies to disclose the ratio of the compensation of its chief executive officer (CEO) to the median compensation of its employees. As provided by the JOBS Act, the proposed rule would not apply to emerging growth companies, smaller reporting companies or foreign private issuers. Newly public companies would have a transition period and initial compliance would be required with respect to compensation for the first fiscal year commencing on or after the date the company becomes subject to the reporting requirements. SEC Chair Mary Jo White stated that « this proposal would provide companies significant flexibility in complying with the disclosure requirement while still fulfilling the statutory mandate ».

This new rule is required under Section 953(b) « Executive compensation disclosures » of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”). Section 953(b) the “Dodd-Frank Act”) directs the Commission to amend section 229.402 of title 17, Code of Federal Regulations, to require each issuer companies to disclose in any filing of the issuer described in section 229.10(a) of title 17, Code of Federal Regulations (or any successor thereto) — the median of the annual total compensation of all employees of the company, except the chief executive officer (or any equivalent position) of the issuer; the annual total compensation of the chief executive officer (or any equivalent position) of the company; and the ratio of the median of the total compensation of all employees of the company to the annual total compensation of the chief executive officer of the company. Section 953(b) also requires that the total compensation of an employee of a company shall be determined in accordance with section 229.402(c)(2)(x) of title 17, Code of Federal Regulations, as in effect on the day before the date of enactment of the Dodd Frank Act.

The proposed pay ratio rules would provide flexibility since they do not prescribe a specific methodology for companies to use when calculating « pay ratio ». Companies would be allowed to determine the statistical methodology that best suits their particular circumstances to determine the median annual total compensation of its employees. Registrants may choose to identify the median using their full employee population or by using statistical sampling or another reasonable method. However, companies would be required to disclose the methodology used to identify the median, and any material assumptions, adjustments or estimates used to identify the median or to determine total compensation. One of the reasons to allow registrants flexibility in developing their own methodology is to take into account potential costs associated for compliance with the new rule.

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Federation of Labor and Congress of Industrial Organization (“AFL-CIO“) demanded for labor law reforms in its annual convention. According to the AFL-CIO, the National Labor Relations Act falls short of fulfilling its promise to American workers in relation to collective bargaining, self-organization and other freedoms.

The organization issued a resolution advocating for the Employee Free Choice Act and stating that labor law has failed to adapt to the new needs of workers in light of the modern economy and employment relationships. The resolution specifically stated that « federal labor law no longer fits the economy, the employment relationship or the workplace and, after almost 80 years of practice, employers, aided by the Taft-Hartley amendments of 1947 and a multibillion-dollar industry of “union-avoidance” consultants, have nearly perfected the subtle and sometimes not-so-subtle exercise of the very economic power the act was designed to counterbalance to “persuade” employees to remain unrepresented.

During the convention, AFL-CIO President Richard Trumka denounced that workers earn less than they did 15 years ago although they are working harder and longer hours. He proposed uniting with workers and organizations outside unions to advocate for a comprehensive labor law reform. Also, he criticized recent worker rights reforms in Wisconsin and Michigan including protections for government and agricultural workers as well as workers who lack supervisory authority, and those who have been classified as independent contractors but are not economically independent from the employers they serve.

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A Kentucky miner who was fired after raising workplace safety concerns has won his suit against his former employer.

Reuben Shemwell was terminated by Armstrong Coal in September 2011. He alleged that his firing was retaliation for his complaints about dangerous working conditions, and filed a safety discrimination complaint.

Outrageously, Armstrong then counter-sued Shemwell. The company filed in Kentucky state court, alleging that Shemwell’s complaint was “wrongful use of civil proceedings.” Shemwell’s attorney said it was “the first time I know of anywhere in the country where a company has sued a miner for filing a discrimination complaint.”

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We usually write about wage violations and employment discrimination; workers deserve to be treated fairly. Even more basic, though, is the need for a safe workplace. Recently, headlines about the tragic consequences of unsafe labor practices have been sadly frequent: maimed workers at North Carolina’s Royale Comfort Seating, a deadly explosion at a Texas fertilizer plant, and the horrific collapse of a garment manufacturing facility in Bangladesh.

The latter calls for American consumers to re-examine the choices they usually make thoughtlessly. A New Yorker article examines the causes and consequences of the Bangladesh disaster, which is now “one of the worst industrial accidents ever.”

The phenomenon of “fast fashion,” which calls for new clothes on retailers’ shelves at an accelerated pace, is increasing the pressure on manufactures. Garment companies’ ever-present drive for higher profits also contributes directly to the poor conditions. The article quotes an M.I.T. professor: “Often, the only way factories can make the variety and quantity of goods that brands want at the price points they’re willing to pay is to squeeze the workers.” Compounding the problem, in Bangladesh, “labor unions are frowned upon, there’s no one to speak up for workers in these factories. So safety becomes an afterthought at best.”

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Last week, the D.C. Circuit dealt a blow to workers’ rights: the Court ruled against a National Labor Relations Board (NLRB) rule, proposed in 2010, that required businesses to display posters informing workers of their right to organize.

The A.F.L.-C.I.O. president criticized the ruling:

“In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s ruling suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages and many other areas.”

The Fourth Circuit is “also reviewing the legality of the poster rule.” (The current NLRB is itself in judicial limbo, pending a Supreme Court appeal.)

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