N-Word at the US Supreme Court

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The N-Word has landed at the Supreme Court of the United States. Collier v. Dallas County Hospital District [Briefs]. Petition for a writ of certiorari filed on January 15, 2021.

The N-Word was scratched into an elevator that the employees used, and it stayed there for months.

And the lower courts are saying well, this is not serious enough, not pervasive enough to alter the terms and conditions of the employee’s employment and create an abusive workplace. [5th Circuit decision]

I know the lower courts are split in terms of how they exactly handle the N-Word, but this case is just plain wrong. And I want the Court to take this case up.

This is a case where the jury ought to be deciding whether there's an abusive workplace.

It's interesting that once the cert petition was filed the employer filed a waiver saying — well, we don't need to file a response to this case. And the court has asked the employer to file a response. (Due March 18, 2021)

So I'm hoping they take this case up.

It's time to get the N-Word out of the workplace.

Fired because she intended to get pregnant

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A recently married woman filed a lawsuit claiming she was discriminated against because she told the boss she was intending to become pregnant. South Texas College v. Arriola (Texas Ct App 02/11/2021)

Her claim is that she told her co-workers and her supervisors of her intention to become pregnant, and then all of a sudden she's getting harassed, she's getting disciplined, and ultimately she gets fired.

The legal question is whether this states a claim under the Texas Civil Rights Act.

The employer, of course, says well look, the statute does not cover a situation where somebody is just INTENDING to become pregnant. It only covers cases where people are pregnant.

And the Texas Court of Appeals replied saying look, when we interpret the Texas statute we are going to look at Title VII cases for guidance, and the overwhelming number of Title VII cases like this have held that it is sex discrimination when an employer discriminates against a woman who says she intends to become pregnant.

The point being that when you discriminate against a person who is intending to become pregnant, by definition you're discriminating against women.

This may have been the first time it ever came up in a Texas court, but this is pretty much the rule of law all around the country under Title VII.

Dynamex applies retroactively

Watch the video: https://youtu.be/W0Qovx09zaU

Four reasons why the California Supreme Court is applying Dynamex retroactively.

Prediction in SCOTUS's "union trespass" case [Video]

Watch the video: https://youtu.be/0RoA__x92s0

I'm predicting that the US Supreme Court is going to overrule the 9th Circuit in a case involving union representatives getting access to private property. The case is Cedar Point Nursery v. Hassid [Briefs].

The California Agricultural Labor Relations Board has a rule that says that agricultural growers in California are required to allow union representatives to come onto their property for as long as three hours a day and as many as 120 days a year. The three hours are an hour before work, an hour after work, and an hour during lunch.

The question in this case is whether this results in a "taking" under the 5th amendment, so that the government is required to compensate the growers for that taking. The cert petition phases the issue this way: "Whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

There's no question about whether this rule is valid. There's no question about whether it's a smart rule or an unwise rule. It's a question of whether this is a taking that requires compensation.

Both parties agree that what the government has done is taken easement.

What the Board is saying is Well, it's not all the time. It's not continuous. It's intermittent. It's only 120 days. It's only three hours a day And there are limitations on what these union reps can do while they are on the property.

And the growers are saying Well, yeah, but that doesn't really make any difference. If you take an easement, that is per se a “taking” under the 5th amendment, and the fact that it's intermittent and that there are restrictions on what the union reps can do — that goes to the amount of compensation. It doesn't go to the question of whether it's a taking in the first place.

And I'm predicting that the Supreme Court will come down on the side of the growers and say yes, this is a taking. The distinction between all-the-time and part-time really doesn't make any difference.

I say that not because I think the Supreme Court has some bias in favor of management or some ax to grind against unions. It's that this new Supreme Court has shown that it's willing to put much more vitality into the Bill of Rights. And this is a case where I think that's exactly what they're going to do.

The case will be argued probably later in the spring and we’ll get a decision by Summer.

Cert granted in "union trespass" case

The US Supreme Court granted certiorari in Cedar Point Nursery v. Hassid [Briefs] to review the 9th Circuit's decision. California law allows union organizers to go onto the land of agricultural growers for up to three hours per day and for up to 120 days per year. The activities are limited to meeting and talking with employees and soliciting their support; the number of organizers is limited; and business disruption is prohibited.

The issue in this case is whether California has to compensate the growers for a "taking" under the 5th amendment. This case is not about whether California's rule is lawful, or whether it is appropriate.

From a legal standpoint, this is a 5th amendment "takings" case. From a practical standpoint, this is a battle between agricultural employers and labor unions.

Here's how the cert petition phrased the Question Presented:

"California law forces agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The regulation provides no mechanism for compensation. A divided panel below held that, although the regulation takes an uncompensated easement, it does not effect a per se physical taking of private property because it does not allow '24 hours a day, 365 days a year' occupation. As an eight-judge dissent from denial of rehearing en banc noted, the panel 'decision not only contradicts Supreme Court precedent but also causes a circuit split.'

"The question presented is whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment."

Here's how the California Agricultural Labor Board phrased the Question Presented:

"In 1975, the California Agricultural Labor Relations Board promulgated a regulation affording union organizers a limited right to access the property of agricultural employers. Cal. Code Regs., tit. 8, § 20900(e). The Board modeled the regulation on a right of access that this Court has recognized under the National Labor Relations Act. See id. § 20900(b); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). The state regulation restricts the right of access in several ways. Among other things, organizers may access only non-work spaces, during non-work periods, for no more than three hours per day, and for no more than four thirty-day periods each year. Cal. Code Regs., tit. 8, § 20900(e)(1)(A), (3). The only permissible purpose of the access is for organizers to meet and talk with employees and solicit their support, id. § 20900(e), and the access right terminates five days after the completion of a ballot count in a union representation election, id. § 20900(e)(1)(C). The organizers must provide advance notice to the employer, id. § 20900(e)(1)(B), and only two organizers, plus one additional organizer for every 15 employees beyond 30, may access the property, id. § 20900(e)(4)(A). Disruption of the employer’s business operations is prohibited. Id. § 20900(e)(4)(C).

"The question presented is: Whether the access regulation effects a per se physical taking of petitioners’ property under the Fifth Amendment."

On the Alert

One of the things I do:

Once a week I write an “On the Alert.” Then I post that on LinkedIn.

You can read today’s offering here.

I just pick up one of the court decisions that LawMemo sends out, and write a few words about it.

I like to pick cases that have interesting facts. Once in a while there’s a case with interesting law.

I founded LawMemo back in 1998. Now I’m a part-time employee. If you’re not getting their Employment Law Memo on a regular basis, you’re missing out.

Remote arbitration hearing

Today I’m conducting my first remote arbitration hearing. I had tried to persuade several others to hold remote hearings, but they all declined, preferring to postpone. I finally stopped asking. Then I got word that one company and union wanted to have a remote hearing.

It makes total sense. The lawyers are in two different states, and I’m in a third. Considering the two lawyers, the arbitrator, and the location where the grievance arose, we’re looking at four locations separated by 800 miles. The only losers will be the airlines and the hotels.

Although I have spent a lot of time preparing and practicing, doing something like this gives me the jitters. Wish me luck.

By the way, you can read my Protocol for Remote Hearings here.

And here is a video on Remote Arbitration Hearings: https://youtu.be/Fyx_ZU62yN0

Refund of fair share dues paid pre-Janus is denied. Next stop: Supreme Court.

It's quite rare for an appellant to ask a court to affirm the decision below. Yet that is what happened in Ocol v. Chicago Teachers Union (7th Cir 12/09/2020).

Joseph Ocol is a math teacher in the Chicago public school system. After he was booted out of his union for failure to support a strike in 2016, he kept paying fair-share fees to the union. Those payments were required by the collective bargaining agreement, as authorized by a state statute.

Then the US Supreme Court decided Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), which held that forcing payment of fair share dues violates the constitution.

Ocol sued to get a refund of the dues he had paid prior to Janus, and mounted a First Amendment challenge to exclusive representation. The trial court held against him.

On appeal to the 7th Circuit, Ocol admitted that both claims are squarely foreclosed by precedent and requested that the 7th Circuit summarily affirm judgment in the defendants’ favor so that he may appeal to the Supreme Court.

The 7th Circuit was only too happy to comply. After all, every appellate court that has taken up the question has reached the same answer: A private party acting under color of state law for § 1983 purposes is entitled to a good-faith defense. And, in Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), the Supreme Court rejected a First Amendment challenge to a similar exclusive representation provision applicable to state colleges in Minnesota.

Looks like Ocol will petition for certiorari. My bet is that cert will be denied, mainly because there is no split of authority among the lower courts.

Scabby the Rat might become illegal

NLRB Press Release:

Washington, DC, October 27, 2020 –

In an order issued today, the National Labor Relations Board invited parties and amici to submit briefs in International Union of Operating Engineers, Local Union No. 150 (Lippert Components, Inc.), 370 NLRB No. 40. In the underlying case, the Administrative Law Judge found that the union’s stationary display of a 12-foot inflatable rat and two large banners on public property did not constitute picketing or otherwise coercive nonpicketing conduct in violation of Section 8(b)(4) of the National Labor Relations Act. In the notice and invitation to file briefs, the Board seeks public input on the following questions:

1) Should the Board adhere to, modify, or overrule Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011)?

2) If you believe the Board should alter its standard for determining what conduct constitutes proscribed picketing under Section 8(b)(4), what should the standard be?

3) If you believe the Board should alter its standard for determining what nonpicketing conduct is otherwise unlawfully coercive under Section 8(b)(4), what should the standard be?

4) Why would finding that the conduct at issue in this case violated the National Labor Relations Act under any proposed standard not result in a violation of the Respondent’s rights under the First Amendment?

Chairman Ring and Members Kaplan and Emanuel joined in issuing the notice and invitation; Member McFerran dissented.

Briefs by the parties and amici not exceeding 25 pages in length and briefs by amici not exceeding 20 pages shall be filed with the Board in Washington, DC on or before November 27, 2020, and December 28, 2020, respectively. The parties may file responsive briefs on or before January 11, 2021, which may not exceed 15 pages in length. The parties and amici shall file briefs electronically by going to www.nlrb.gov and clicking on “E-Filing.” If assistance is needed in E-Filing on the Agency’s website, please contact the Office of the Executive Secretary at 202-273-1940.

Uber & Lyft drivers are employees - video

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Uber and Lyft have been preliminarily enjoined from classifying their drivers as independent contractors rather than employees and the California Court of Appeal has affirmed that injunction. The People v. Uber (Cal Ct App 10/22/2020) [PDF].

The California legislature adopted Assembly Bill 5, which adopts the ABC test for determining who’s an employee and who's an independent contractor, and that statute allows the Attorney General to bring a law suit to enjoin violations.

Assembly Bill 5 presumes that workers are employees unless the company can prove A, B, and C, and this case actually involves only the B part which is whether the drivers perform duties that are outside the normal course of business of Uber and Lyft.

Of course Uber and Lyft are saying well look … we're technology platforms, and all we're doing is lining up drivers with passengers. We're not in the transportation business.

And the court took a lot of evidence and they decided that yeah, Uber and Lyft are actually in the transportation business. So their drivers are performing the work of a transportation company.

The Court of Appeal took a look at that preliminary injunction and said Uber and Lyft are very likely to lose on the merits, and it'll be a substantial hardship if the Attorney General can't get this injunction, and when they balance the harms from the standpoint of the defendants and the standpoint of the plaintiffs, it all shook out so that the Attorney General is going to keep that injunction.

Now, what's happened is that the court has put a stay on that injunction until after the November 3d election, and on that election day we have Proposition 22, which would remove Assembly Bill 5 and substitute a whole new classification of workers just for these gig employers. So we'll wait and see what happens on November 3d. Otherwise, Uber and Lyft are going to have to classify their drivers as employees.

Arbitration Boot Camp

Here is the Arbitration Boot Camp collection of videos, designed for for parties and representatives in labor-management arbitrations.

Watch “Selecting Your Arbitrator” video

Watch “Pre-Hearing Preparation” video

Watch “Opening Statement” video

Watch “Cross-Examination” video

Watch “Post-Hearing Briefs” video

Watch “Remote Arbitration Hearings” video

Watch “My First Case” video

ADR Podcast

This podcast discusses litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

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ADR Podcast preview

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Here’s a preview of a podcast discussing litigation, arbitration, mediation, and negotiation as they are used in resolving disputes between employees and employers.

The full podcast will be available on September 17, 2020.

7 US Supreme Court cases on employment law (2019-2020)

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During its 2019-2020 term, the US Supreme Court decided seven cases on employment law, including the game-changing decision that Title VII prohibits discrimination because an individual is gay or transgender.

Title VII, gay and transgender employees: An employer who fires an individual merely for being gay or transgender violates Title VII. Bostock v. Clayton County  (6-3).

Ministerial exception: The First Amendment’s Religion Clauses foreclose the adjudica­tion of employment-discrimination claims brought by fifth grade teachers at Catholic schools. Our Lady of Guadalupe School v. Morrissey-Berru (7-2).

ACA Contraceptive mandate: Federal agencies had the authority under the ACA to promulgate religious and moral exemptions to the contraceptive mandate. Little Sisters of the Poor v. Pennsylvania (7-2).

Age discrimination: The ADEA demands that federal personnel actions be untainted by any consideration of age. To obtain reinstatement, dam­ages, or other relief related to the end result of an employment deci­sion, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimi­nation played a lesser part in the decision, other remedies may be ap­propriate. Babb v. Wilkie (8-1).

Causation under 42 USC §1981: A §1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury, and that burden remains con­stant over the life of the lawsuit. Comcast v. Natl Assoc of African American-Owned Media (9-0).

ERISA statute of limitations: A plaintiff does not necessarily have “actual knowledge” under §1113(2) of the information contained in disclosures that he receives but does not read or cannot recall reading. To meet §1113(2)’s “actual knowledge” requirement, the plaintiff must in fact have become aware of that information. Intel Corp Committee v. Sulyma (9-0)

ERISA standing: Plan beneficiaries whose benefits are defined lack standing to sue the plan for alleged poor investment of assets. Win or lose, they would still receive the exact same monthly benefits they are already entitled to receive. Thole v. U.S. Bank (5-4).

VIDEO - Race discrimination in the workplace

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Race discrimination in the workplace is forbidden by federal law, and by the law in most states.

This video gives an overview of race discrimination in employment, and some of the remedies that are available to employee,