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Lawyer to Lawyer Newsletter
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February 2016
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Dedicated to providing fellow lawyers, as well as accountants and other business advisers, with the latest news on the developing law of the workplace, written by nationally recognized lawyers who are committed to representing employers exclusively in matters of labor, employment, immigration and human resources law.
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From the Desk of James B. Sherman, President/CEO:
 February 2016 Was Largely Unkind to the NLRB in Minnesota and Nearby States
Similar to the groundhog, Punxsutawney Phil, the National Labor Relations Board (NLRB) emerged from the comfort of that agency's "den," in February 2016, only to see some of its decisions "overshadowed" by the U.S. Court of Appeals for the 8th Circuit when the court refused to enforce them on appeal. In one case the appellate court reversed a Board decision that had found an employer unlawfully disciplined an employee for soliciting union support from co-workers while they were working. In another case involving an employer in the construction industry, the court determined that the NLRB had issued an "unlawful order" when it tried to enforce an operating engineers (IUOE Local 150) collective bargaining agreement for employees already covered by an agreement with the Laborer's Union (LIUNA). These were big victories for those involved as well as employers everywhere, yet it remains to be seen whether they signal an extended season of cold shoulder treatment for the NLRB in 2016. If nothing else these recent court rulings signal that our federal appellate court in the 8thCircuit will not rubber-stamp the Board's growing list of aggressive decisions, many of which employers see as favoring unions and employees over employers.
Employers unlucky enough to land in the NLRB's world often find it necessary to pursue their cases on to the federal courts of appeals in order to feel that they have a reasonable shot of prevailing. A prime example that has gained national attention, is the Board's ruling in its D.R. Horton case involving a non-union employer. In that case the NLRB ruled that the employer unlawfully interfered with its employees' protected right to engage in "concerted activities" by enforcing an arbitration agreement whereby employees waived their right to pursue class action claims in court. The 5th Circuit Court of Appeals, in Louisiana, refused to enforce the D.R. Horton decision, criticizing the Board's attempt to equate lawsuits with strikes and other employee group activities that have long been protected by federal labor laws. Undeterred, the NLRB has continued to make similar findings against employers outside the 5th Circuit. In fact, just as the 8th Circuit Court of Appeals was rescuing two employers from unfavorable NLRB decisions the agency issued yet another "Horton-like" decision against a Minnesota Applebee's restaurant franchisee. As in the D.R. Horton case, the NLRB's February 2016 Applebee's ruling found that the employer's handbook "Dispute Resolution Program" violated federal labor law by including a waiver provision on class-action lawsuits.
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Things You Need to Know...
About All Things HR:
A Day of Lists
Join our employment attorneys for an interesting and informative "Day of Lists," an entire day devoted to the most critical aspects of the decisions and issues you face on a daily basis -- and their legal consequences, all in a unique and fun "list" format.
Cost: $175 - First person; $125 - Additional person (same company)
Location: Country Springs Hotel & Conference Center Pewaukee, WI
Early reservation rate: $104 (for hotel registrations made by April 12, 2016)
CREDITS: We are in the process of applying for CLE credits for Minnesota, Illinois, Wisconsin, Iowa and Indiana. Approved credits will be posted. 6.5 CPE and HRCI credits available.
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Legal Brouhaha between the U.S. Soccer Federation and the Union for the Women's National Soccer Team, Illustrates the Importance of "Dotting I's and Crossing T's" in Collective Bargaining
In a lawsuit filed in federal court in Chicago on February 3, 2016, the United States Soccer Federation is seeking a "declaratory judgment" that its collective bargaining agreement (CBA) with the Women's National Soccer Team Players Association, remains in effect through the end of 2016. The Players Association, the union representing the U.S. Women's Soccer Team, is alleged in the lawsuit to have declared that the CBA either already expired prior to 2016, or was terminable at will. The union therefore contends that the players are free to go on strike at any time of their choosing. Women's team players have made no secret of their dissatisfaction with the fact that they are paid less than players on the men's national team, despite the fact that the women are past Olympic and recent World Cup Champions, whereas the men have failed to advance in world competition. No doubt the players' union intends to leverage its demands for improved wages and other terms for the women's national soccer team players, under threat of a strike. The federation's lawsuit seeks to enforce a CBA it contends bans the union from striking in 2016.
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EEOC Remains Active/Highly Aggressive in 2016
Already this year, the EEOC has introduced two
very significant measures that are sure to delight plaintiff lawyers while causing serious concerns for employers and their management-side attorneys, including your friends here at Wessels Sherman. The more troublesome new measure is the EEOC's proposal to significantly modify the information employers must report each year as part of the agency's EEO-1 reporting requirements. Specifically, starting in September of 2017 the proposal is to require employers to include additional information in their annual EEO-1 reports to the government, setting out pay ranges
and hours worked
for their employees. It takes little imagination to think of how a federal governmental agency such as the EEOC might use this kind of information if employers are made to disclose it, annually. Another new proposal involves new guidelines on retaliation prohibited under the various laws administered by the EEOC, such as Title VII, ADA, ADEA and EPA. These guidelines are designed to educate the public on how the EEOC views retaliation claims, which continue to be the fastest growing type of claim filed with this agency. No doubt they also will educate more plaintiffs on how to sue.
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Form I-9, the Employment Eligibility Verification employers must complete for all newly hired individuals, is such a simple looking two-sided form, yet there seems to be no end to the complications that it causes employers and employees alike. A recent court decision illustrates just how problematic Form I-9s can be, where the court used an employee's misrepresentations on the form years later to prevent him from becoming a lawful permanent resident. As a consequence, the individual was subject to deportation and the employer lost an employee.
The individual in question applied to become a permanent resident after marrying a U.S. citizen. However, when filling out I-9s at his various jobs, he always checked a box indicating that he was "a citizen or national of the United States." He testified that he wanted his employers to think he was a citizen, because he believed he would lose his job if he was not a citizen. An individual is inadmissible to the United States, and ineligible to become a permanent resident if he falsely represents himself as a citizen of the United States for any purpose or benefit under the Immigration and Nationality Act. Although an individual is not inadmissible for falsely representing himself as a national, the court determined, based on his testimony that he was intending to represent himself as a citizen, not a national, by checking that box.
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Don't Understand What Handbook Provisions/Social Media Policies the NLRB Would Find Lawful or a Violation Federal Labor Law? Let Wessels Sherman Help...for Free!
The NLRB's decisions with regard to employer policies on social media, confidentiality, etc. are confusing, at best, and offer little guidance from one decision to the next on how the Board will view a specific policy in a particular situation. Often, these decisions will turn on a single word, and at times, the very same language will be found to be lawful or unlawful based on the handbook as a whole or the timing of the policy's enactment. The best guidance available to employers are the many Board decisions that have been issued in recent years. Our
free summary does the work for employers, setting out succinctly many key decisions of which policies pass or fail NLRB scrutiny. For a free copy of this summary, contact Ms. Chrissy Beggan at
[email protected].
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About Us
We regularly work with other lawyers, accountants and business advisers as a trusted resource for their clients, whether as co-counsel, local counsel (from any of our 5 offices in MN, WI, IL or IA), or referrals in our concentrated area of practice. Your client relationships as a referring professional are highly respected. Our goal is to provide your clients with exceptional and cost conscious representation in our concentrated area of practice.
Sincerely,
James B. Sherman, Esq.
Wessels Sherman
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Contact James Sherman at:
(952) 746-1700
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