Over the past two years, Right-to-Work proponents have been dealt several setbacks, most notably when the U.S. Supreme Court deadlocked in Friedrichs v. California Teachers Association, a case concerning the issue of whether public employees who do not ...


Illinois Legislation Seeks To Ban Municipalities From Enacting Local Right-To-Work Laws and more...

Illinois Legislation Seeks To Ban Municipalities From Enacting Local Right-To-Work Laws

Over the past two years, Right-to-Work proponents have been dealt several setbacks, most notably when the U.S. Supreme Court deadlocked in Friedrichs v. California Teachers Association, a case concerning the issue of whether public employees who do not join a union can be required to pay an “agency” or “fair share” fee to cover costs that the union incurs, by issuing a non-precedential 4-4 per curiam opinion affirming the lower-court decision. More recently, in Janus v. AFSCME, the U.S. Court of Appeals upheld the district court’s dismissal of Governor Rauner’s litigation challenging fair-share fees on the grounds that he did not have standing because he was not subject to the fair share fees requirement. In the same way the plaintiff’s in Friedrichs v. California Teachers Association sought an expedited path to have the case heard by the U.S. Supreme Court, the plaintiffs in Janus are virtually pursuing the same strategy. And back in January 2016, a federal judge found that the Village of Lincolnshire’s Right-to-Work ordinance is preempted by the National Labor Relations Act, and that only states and territories have the authority to enact such laws. The dispute arose in late 2015 when an Illinois home rule municipality passed a “right-to-work” ordinance establishing worker freedom.  Under the “right-to-work” ordinance, individuals can work for a private company in union-protected positions without having to join the union or pay the full share of union dues. In a zone designated right-to-work, non-union employees also get benefits negotiated by a labor union with company management. The ordinance approved late last year only applied to private companies within the village and not to public-sector employees, such as police officers.

On the heels of these cases, the Illinois House Labor and Commerce Committee passed a bill to prohibit municipalities in Illinois from enacting local Right-to-Work measures. The bill is SB 1905, otherwise referred to as “the Collective Bargaining Freedom Act,” and it provides that it is the policy of the State that employers, employees, and their labor organizations are free to bargain collectively and that the authority to enact laws or rules that restrict the use of union security agreements between an employer and a labor organization vests exclusively with the General Assembly. In other words, SB 1905 prohibits municipalities from enforcing any such law or rule respective to Right-to-Work.

The House Labor and Commerce Committee passed SB 1905 on a 15-10-1 vote along party lines. SB 1905 now proceeds to the full House of Representatives for a hearing. Although the bill is still in its infancy and Illinois lawmakers are moving forward with SB 1905, the Village of Lincolnshire’s Right-to-Work law is already playing out in the courts. That case has been appealed to the U.S. Court of Appeals for the Seventh Circuit, which previously upheld the legality of Indiana’s right-to-work but on different grounds and did not address the issue of whether local governments constitute a political subdivision of their state that have authority to enact right-to-work laws. Notwithstanding, the issue here is similar to the Sixth Circuit’s decision in Hardin that found counties and cities are political subdivisions of the state that can enact right-to-work ordinances.  If the Seventh Circuit reaches the same conclusion the Sixth Circuit did, then Illinois cities will be able to pass right-to-work themselves. But, if the Seventh Circuit disagrees, this dispute is likely headed to the U.S. Supreme Court so that the circuit split concerning whether local governments have authority to enact right-to-work legislation can be fully resolved.

Notwithstanding the current litigation, if SB 1905 passes, it would mark a departure from neighboring states, particularly Indiana, Iowa, Missouri, and Wisconsin, Kentucky, as well as Kentucky, all of which have enacted Right-to-Work laws. It would also conflict with various public statements and tweets made by President Trump who, along with Vice President Pence who championed Right-to-Work legislation while the governor of Indiana, has indicated a preference for Right-to-Work laws. Although there have been recent setbacks in the Right-to-Work movement, the Illinois legislature is not only seeking to regulate and effectively preempt municipalities, it also likely recognizes that with the conservative majority in the U.S. Supreme Court, legal challenges to the validity of Right-to-Work laws are now in jeopardy.

We will continue to update you on the legislative path of SB 1905. Should you have any questions about Right-to-Work issues or SB 1905 please contact us.


Is Pregnancy a Disability?

Earlier this month, the United States District Court for the Northern District of Oklahoma issued a decision which clarifies the relationship between pregnancy and the Americans with Disabilities Act (ADA).  The case concerns an employee working as a certified nursing assistant at an assisted-living facility.  The employee, who was thirteen weeks pregnant, gave her employer a doctor’s note restricting her from lifting more than 25 pounds.  The employer immediately placed the employee on FMLA leave and subsequently terminated her after the 12 weeks of FMLA time had expired.

In the court’s dismissal of the employee’s ADA claim, it stated, "pregnancy and related medical conditions do not, absent unusual circumstances, constitute a `physical impairment' under the ADA."  The court further explained that a plaintiff alleging a pregnancy-related disability under the ADA cannot merely state that she is pregnant and her doctor has imposed a restriction.  Instead, she would need to claim that she was pregnant and had a related physical or mental impairment to satisfy her initial burden in bringing a claim under the ADA.  LaCount v. South Lewis SH OPCO, LLC, Case No. 16-CV-0545-CVE-TLW (N.D. Okla. May 5, 2017).  The EEOC lists gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine, as examples of pregnancy-related impairments which might be considered disabilities under the ADA.  It is when unusual circumstances such as these which trigger the employer’s obligation to provide reasonable accommodation for a disability related to pregnancy, unless doing so would place an undue hardship on the employer.

The court ultimately dismissed the employee’s pregnancy discrimination claim as well, finding that the employee did not sufficiently allege that she was treated differently because of her pregnancy.  Although the employer placed the employee on medical leave after being informed of the pregnancy and weight restriction, the court stated that her “allegations could support an inference that she was placed on medical leave due to a lifting restriction, but there are no allegations tending to suggest that plaintiff was treated differently than other similarly situated employees.”  The employee did state that she was treated differently than employees who were disabled however, as the court established, the employee was not actually disabled as a result of her pregnancy.

The employee in this case, like many employee-plaintiffs, cited to her employer’s handbook in an attempt to substantiate her claims.  Although the court found that the employer’s policies, alone, did not show discrimination, employers are nonetheless encouraged to consult with a labor and employment attorney and ensure its policies are in compliance with applicable laws.


Restaurant in Hot Water for Firing Employees over Critical Email

A New York restaurant owner recently got a taste for the National Labor Relations Act (NLRA), and discovered that it can be quite bitter for employers. The case, which can be viewed by clicking here, is a lesson to employers that firing critical employees can put them in hot water.

One of the restaurant’s employees quit and sent her boss, along with some of her co-workers, an email discussing how the restaurant had become a terrible place to work, with her boss mistreating her and her co-workers. Several of the disgruntled employee’s co-workers replied to the email expressing their support and agreement. Management then fired these employees, calling their conduct “deeply insubordinate.”

The fired employees sued their employer, claiming that they had been fired for engaging in concerted activities protected by the NLRA. The NLRA makes it illegal for employers to fire employees for bringing grievances about the workplace or their working conditions to their employer’s attention. It also makes it illegal for employers to prohibit employees from unionizing or discussing unionization.

The judge presiding over the case ruled that the firing of the employees violated the NLRA because the employees were engaging in criticism of their employer through an ongoing dialogue. He held that the email was not intended to harm the business, nor was it a disrespectful act of insubordination. He held that it did not harm the employer in any way, but merely critiqued the employer’s management style.

The judge ordered the employer to restore the fired employees to their previous positions, and to reimburse them for their lost earnings, their job-search and interim-employment expenses, and to remove any reprimands from their employee files.

The lesson for employers is to not automatically discipline employees for making complaints, as this may be a violation of the NLRA. Only if the complaints are harmful to the business or constitute clear insubordination will they provide an employer with a legally-justifiable cause to fire an employee. The line between complaints protected by the NLRA and those which are not is a fine one that is often quite dependent upon the particular facts of a case. Employers may want to consider contacting an attorney for advice on dealing with a particular employee complaint.

Is It Age Discrimination if You Recruit at College Campuses?

Employers know that one of the easiest ways to find a whole group of candidates for entry level professional jobs is to recruit at college candidates.  But, is that also age discrimination?

A 53 year old accountant filed suit against accounting giant Price Waterhouse Cooper last month alleging just that. According to the suit, PWC recruits almost exclusively at college campuses for entry level accounting jobs, thereby limiting their hiring to only younger workers and excluding those, like the plaintiff, who fall into age protected classifications. By the way, PWC reports its average age of PWC workers in 2011 was 27.

This same type of argument has been made against companies who solely recruit through online job sites, like Indeed and others with the argument that significantly fewer job candidates who are older use those sites.  News organization Reuters reports that Facebook settled a lawsuit in 2013 which alleged that the company posted job ads for “recent graduates”, thereby excluding older workers, and Google and Twitter are facing similar suits.

The plaintiff in the suit against Price Waterhouse claims that the company’s focused recruiting on college campuses created a disparate impact against older would-be applicants. In essence, while PWC has never overtly limited its hiring to only younger workers, the effect of its hiring practices is to exclude older applicants and those who do not have access to campus job fairs and recruiting initiatives.

How can employers avoid falling prey to a claim like this? First of all, if your business has a website that includes job vacancies, always post every job on your website. While entry level jobs are most often the domain of younger workers looking for a toehold in the workforce, don’t limit recruiting or advertising to colleges or schools in general because the vast majority of students are younger. Although statistics show that fewer people read job ads in newspapers these days, and fewer still are younger readers, newspaper ads can still reach candidates that might not be tech savvy but still can be good workers.  Finally, follow the general rule to reach as broad of a cross section of the population as possible.  Trade magazines or newspapers are okay as long as they reach a variety of possible candidates in terms of age, gender, race, etc. who are interested in that particular area of work. Local papers or publications are fine also, but it’s best not to limit recruiting to that medium alone if your advertisement is not likely to reach a diverse group of people.

The lawsuit is titled Rabin v. PricewaterhouseCoopers LLP, Case No. 3:16-cv-02276, pending in the United States District Court for the Northern District of California.

Union Employees Can Still Sue Over Pay Disputes

One good thing about collective bargaining agreements for employers is that employees have to use the grievance procedure to resolve disputes, rather than filing suit in court. Or do they?

It has long been understood that one exception to this rule is that employees covered by a union contract do not waive their rights under Title VII and other statutory protections absent specific waiver language in the agreement. But, what about pay disputes? Most union contracts have fairly specific language which says that disputes over wages, hours and other terms and conditions of employment are subject to resolution through the grievance procedure. This week the 7th Circuit Court of Appeals held that general language like that does not preclude an employee from filing a claim against their employer under the FLSA.

In the case of Vega v. New Forest Home Cemetery, LLC, the plaintiff, Vega, sued his former employer for failure to pay his last two weeks of wages before he resigned. He alleged that when the company failed to pay him, it violated the FLSA because it did not pay him at least minimum wage for his work during that time.

The company argued that the plaintiff, a union member,  was required to use the grievance procedure to resolve his pay dispute and his failure to exhaust this administrative remedy precluded the court from hearing his claim. The district court agreed with the company. The 7th Circuit did not.

The 7th Circuit held that, like Title VII and other statutory claims, if a collective bargaining agreement does not specifically mention that FLSA claims are subject to the grievance procedure, the union contract does not serve as a waiver of an employee’s right to go directly to court with that claim. The court found that the union contract’s reference that pay disputes were subject to grievance procedure was not specific enough to prohibit the plaintiff from filing a FLSA suit.

Employers should take note that grievance language in collective bargaining agreements that do not specifically identify that statutory disputes are resolved by that process can still face lawsuits from employees. While unions are generally reluctant to waive specific statutory rights to judicial relief in most instances, it may be worth it to negotiate inclusion of wage statutes, such as the FLSA and Wage Payment and Collection Act, in disputes that are covered by the union contract’s grievance procedure.

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