Transgender titles meet the 1st amendment

[Watch the video]

A professor addressed a transgender student as Mr.

The transgender student wants to be addressed as Ms.

University policy says that the professor is required to use the pronoun or the title that the individual student prefers.

The professor on the other hand, has a religious belief. He believes that God created male and female and that those cannot be changed and that he has to follow that when he's teaching in class.

Eventually the University reprimanded him and told him that there would be more discipline coming if he continued to violate University policy. Now, the 6th Circuit came in and said, hey, this prof has a free speech right to do this – which I think is just totally wrong. They also said that the University violated his free exercise of religion, which I think is probably correct. Meriwether v. Hartop (6th Cir 03/26/2021) [PDF]

On the Free Speech part, there's the Garcetti case from the US Supreme Court, which basically says to public employees: If you're speaking out as a citizen you have free speech rights, but if you're speaking pursuant to your official duties as an employee, you do not have speech rights. And the 6th Circuit just basically turned that upside down and said, Oh, well, his speaking in class is the heart of his duties and therefore he has free speech rights. I think that's just totally wrong.

On the other hand, on the free exercise part, the University clearly was hostile to his religion. In fact, there was a Provost at the University who actually laughed during one of the hearings — laughed at his religious belief.

So this case is half right and half wrong. In any event, the 6th Circuit has sent it back for a trial.

NLRB nomination: Gwynne Wilcox

The President has nominated Gwynne Wilcox to fill a vacant seat at the National Labor Relations Board.

Wilcox is a partner at the New York City law firm Levy Ratner, where she represents unions and employees. She is associate general counsel of 1199SEIU – a local of the Service Employees International Union.

She previously worked as an NLRB field attorney in New York.

She is a graduate of Syracuse University (B.A., 1974) and Rutgers University School of Law (J.D., 1978).

The NLRB currently is made up of three Republicans and one Democrat, with one vacancy. If Wilcox is confirmed by the Senate, Republicans will still be in the majority. Another seat will open up in August, which will make room for one more Democrat appointee.

But politics being what it is these days, there is no telling whether the President can get his nominees confirmed by the Senate.

Meanwhile, here's a video in which I make some predictions about changes to expect from a Democrat-controlled NLRB.

[Watch the video]

SCOTUS will not be deciding a case on the N-Word in the workplace

I'm disappointed that the US Supreme Court decided NOT to decide a Title VII case involving the N-Word.

Collier v. Dallas County Hospital District [Briefs] [5th Circuit decision] seemed like the perfect case to grapple with the question of "Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact."

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

And the District Court and the 5th Circuit held that this was not serious enough, and not pervasive enough, to alter the terms and conditions of the employee’s employment and create an abusive workplace.

The lower courts are split in terms of how they exactly handle the N-Word, but this case is just plain wrong. This is a case where a jury – not a judge – ought to be deciding whether there's an abusive workplace.

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

Football coach fired for praying

[Watch the video]

It looks like the US Supreme Court is going to have a second shot at a case where a high school football coach got fired after he refused to stop his practice of saying a prayer right after the game on the 50 yard line surrounded by his players, surrounded by people from the stands. Kennedy v. Bremerton School District (9th Cir 03/18/2021).

The first time this case went up to the Supreme Court, the lower courts had denied the coach an injunction against the school.

All the Supreme Court did was decide not to decide the case. Kennedy v. Bremerton School District (US Supreme Court cert denied 01/22/2019)

But four of the Justices indicated that they were quite critical of the way the 9th Circuit had analyzed this case. So we may see it go up again.

The case really involves a conflict between the coach’s free exercise of religion and the school district’s interest in not appearing to establish a religion by endorsing this particular practice. And the 9th Circuit held simply that the school district had a compelling interest in ensuring that they were not engaged in violating the 1st Amendment which prohibits the establishment of a religion.

Interesting case.

Next stop — Supreme Court.

NLRB nixes proposed grad student rule. Too busy.

The NLRB is withdrawing its proposed rule dealing with graduate students. [Federal Register]

The proposed rule would have established that students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not “employees” within the meaning of the National Labor Relations Act.

Current Board precedent allows such students to be classified as “employees,” thus giving them the right to organize a union and to have the NLRB conduct a representation election — potentially leading to a collective bargaining agreement.

In a press release, the Board says, "The Board has decided to withdraw this rulemaking proceeding at this time in order to focus its limited resources on competing Agency priorities, including the adjudication of unfair labor practice and representation cases currently in progress."

6 changes ahead at the NLRB (video)

[Watch the video: https://youtu.be/eYb6hzjSyz0]

Non-union workplaces will feel the impacts from these changes more than unionized workplaces will.

The Republican majority will stay in place for most of 2021, and changes will roll out — perhaps slowly — after the majority shifts to the Democrats.

Here is my list of 6:

1-   § 7 balancing

2-   Employer's email

3-   "Employee" definition

4-    Joint employers

5-    Micro units

6 - Election rule

N-Word at the US Supreme Court

[View the 1:15 minute video]

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

[Watch the video]

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.