A simple paid suspension is not an adverse employment action

The 11th Circuit joined several other Circuit courts in holding that a simple paid suspension is not an adverse employment action for purposes of a race discrimination claim. Davis v. Legal Services Alabama (11th Cir 12/02/2021) [PDF]. The other Circuits are 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and Federal Circuits.

Davis, who is Black, was executive director of Legal Services Alabama (LSA), a non-profit, for about a year before he resigned and sued claiming race discrimination. Prior to his resignation, LSA placed him on paid leave pending investigation of complaints by some of his subordinates and colleagues. LSA's stated reasons for the investigation involved spending decisions, not following policies when hiring, creating new initiatives without Board approval, and creating a hostile work environment for some employees.

The 11th Circuit pointed out that a paid suspension "can be a useful tool for an employer to hit 'pause' and investigate when an employee has been accused of wrongdoing. And that is particularly so in a case like this one—where the employee under investigation is in charge of all the employees who are the witnesses. As a practical matter, employers cannot expect employees to speak freely to investigators when the person under investigation is looking over their shoulders. Employers should be able to utilize the paid-suspension tool in good faith, when necessary, without fear of Title VII liability."

Davis argued that the manner in which his suspension was handled, and the circumstances that accompanied it, combined to amount to an adverse employment action. But the court disagreed.

Here are Davis' claims and the court's responses:

(1) LSA disclosed the suspension to an individual who had opposed Davis' earlier political campaign. However, Davis offered no evidence that LSA purposely hired that individual because of the bad blood between him and Davis.

(2) The suspension occurred days before a high-profile LSA reception with the state bar, yet there was no evidence that LSA intentionally timed the suspension with the state bar event to embarrass Davis.

(3) LSA compiled a narrative of reasons for the suspension in the suspension letter. To this, the court said, "And it is perfectly reasonable that LSA would compile its reasons for the suspension in a document to give to Davis to avoid any accusations of arbitrariness."

(4) LSA placed a guard in the building in the aftermath of the suspension, but there was no evidence that placing a guard in the building after a suspension was out of the ordinary for LSA.

Davis also argued that because he was the executive director, he served as the public face of LSA, so the paid suspension was more adverse to him than it would be to a low-level employee. However, the court pointed out that, "Davis has offered no authority, and we have found none, to support the notion that whether an action constitutes an adverse employment action should depend on whether the employee is high-ranking in the organization."

Supreme Court will decide whether employee must show prejudice when asserting employer waived right to arbitrate.

The US Supreme Court granted certiorari to decide "Does the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violate this Court's instruction that lower courts must 'place arbitration agreements on an equal footing with other contracts?' AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)."

The case is Morgan v. Sundance Inc (US Supreme Ct cert granted 11/15/2021) [Briefs]

Oral arguments will be scheduled at a later time.

The 8th Circuit reversed the district court's denial of the employer's motion to compel arbitration of Morgan's FLSA claims. Morgan v. Sundance, Inc. [Opinion]

The employer waited 8 months after Morgan filed her claims to file its motion to compel arbitration under a written arbitration agreement. During that time, the employer answered without asserting a right to arbitration, participated in a settlement conference, and filed a motion to dismiss, which the district court denied after taking it under advisement for 4 months. The 8th Circuit held the employer did not waive its right to arbitrate because its motion was not on the merits and Morgan was not prejudiced by the delay.

Arbitration agreement enforced (2-1)

[Watch the video]

When I see the 9th Circuit split 2 to 1 on whether an arbitration agreement is enforceable, that catches my attention. Martinez-Gonzalez v. Elkhorn Packing (9th Cir 11/03/2021) [PDF].

A farm laborer signed an arbitration agreement, then he quit his job, and then he filed a lawsuit claiming wage violations.

The trial court found that the arbitration agreement was unenforceable. Two reasons. One: economic duress. Two: undue influence.

Now this is a question of contract formation — forming the arbitration contract — and that's a question of California state law.

The 9th Circuit pointed out that this guy had just traveled up from Mexico, and he was dependent on the employer for his housing, and he'd already started working. And then the employer gathered 150 of these workers in a hotel parking lot, gave them an orientation, lined them up and said sign these documents.

All of that did not show that the employer committed a “wrongful act.” A wrongful act is required in order to upset that agreement.

And this guy had alternatives. He could have asked if he needed to sign. And nobody told him that he would be fired if he didn't sign. So, there's no economic duress.

As far as undue influence goes, this guy was not what we would call a vulnerable person. He had an education. He'd worked all his life. He was experienced. And the employer did not exert any excessive pressure on him.

The dissent is pointing out that the other two judges are completely disregarding the extensive fact-finding that was made by the trial court. They just ran roughshod over all those fact-findings.

But 2 is greater than 1. So this case is going to go to arbitration.  

US Supreme Court denies religious challenge to Maine's vaccine mandate

The US Supreme Court has denied an emergency request to block implementation of Maine's requirement that all healthcare workers be vaccinated. Does v. Mills (US Supreme Ct 10/29/2021) [PDF].

Maine's mandate allows an exemption for those who produce a doctor's statement indicating that immunization "may be" medically inadvisable, but there is no exemption based on religious belief. Maine does not dispute that its rule burdens the exercise of sincerely held religious beliefs. The applicants explain that receiving the COVID-19 vaccines violates their faith because of what they view as an impermissible connection between the vaccines and the cell lines of aborted fetuses. More specifically, they allege that the Johnson & Johnson vaccine required the use of abortion-related materials in its production, and that Moderna and Pfizer relied on aborted fetal cell lines to develop their vaccines. This much, the applicants say, violates foundational principles of their religious faith.

Justice Gorsuch, joined by Justices Thomas and Alito, dissented from the denial. They argued that Maine is discriminating against workers who have religious objections to the COVID vaccines, saying "Maine's decision to deny a religious exemption in these circumstances … borders on the irrational."

Justices Barrett and Kavanaugh concurred in the denial of an injunction, saying the case should not be resolved using the Court's emergency docket – "on a short fuse without benefit of full briefing and oral argument."

This will not be the end of this case. There will be a petition for a writ of certiorari, following the normal procedures.

NLRB General Counsel on Student Athletes

Today, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memorandum to all Field offices providing updated guidance regarding her position that certain Players at Academic Institutions (sometimes referred to as student athletes), are employees under the National Labor Relations Act, and, as such, are afforded all statutory protections.

This can be a real game-changer.

NLRB nomination: David Prouty

The President has announced his intent to nominate David Prouty to fill an up-coming vacancy at the National Labor Relations Board. The vacancy will arise in late August when William Emanuel’s term expires.

Prouty’s LinkedIn profile: “David Prouty is the General Counsel of Service Employee International Union (SEIU) Local 32BJ, the largest labor union for property service workers in the country with over 175,000 members.

“He served as General Counsel of the Major League Baseball Players Association (MLBPA) from 2013 – 2017 and as Chief Labor Counsel of the MLBPA from 2008 – 2013. Prior to June 2008, Mr. Prouty was General Counsel of UNITE HERE, the union formed by the 2004 merger of UNITE, the Union of Needletrades, Industrial and Textile Employees, with HERE, the Hotel Employees and Restaurant Employees International Union, and was General Counsel of UNITE from 2001 - 2004.

“Before his appointment as General Counsel of UNITE, Mr. Prouty was Southern Regional Counsel for UNITE and its predecessor union, the Amalgamated Clothing and Textile Workers Union (ACTWU), for fifteen years and litigated many of the union’s landmark organizing cases including Fieldcrest Cannon, S. Lichtenberg, Tultex and Kmart.

“He was the Union Co-Chair of the ABA’s Committee on Practice and Procedure before the NLRB from 2007 – 2010; was a member of the NLRB Union Advisory Panel from 1997 to 1998; is a Fellow of the College of Labor and Employment Lawyers, and is a member of the Peggy Browning Fund’s Advisory Board.

“Mr. Prouty graduated from Walter Johnson High School in Bethesda, Maryland in 1976; received his AB magna cum laude from Bowdoin College in Brunswick, Maine in 1980; worked as a researcher and organizer for the American Federation of State, County and Municipal Employees (AFSCME) from 1980 to 1983; and received his JD cum laude from Harvard Law School in 1986.”

SCOTUS: Union access rule is a "taking"

[Watch the 90-second video]

California has a regulation that grants labor organizations a "right to take access" to an agricultural employer’s property in order to solicit support for unionization.

The US Supreme Court holds (6-3) that this appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. Cedar Point Nursery v. Hassid (US Supreme Ct 06/23/2021). [PDF]

That obligates the government to provide the owners with just compensation.

This is true even though the regulation does not allow for permanent and continuous access 24 hours a day, 365 days a year. A physical appropriation is a taking whether it is permanent or temporary. The duration of the appropriation bears only on the amount of compensation due.

The Court declined to adopt the theory that the access regulation merely regulates, and does not appropriate, the growers’ right to exclude.

Three Justices would hold that this was a "regulation" which requires the use of a complex balancing test to determine whether there has been a compensable taking.

Get vaccinated or get fired

[Watch the 1:40 minute video]

Can the boss require you to get vaccinated or you're going to lose your job? A federal judge in Texas says, yes. Bridges v. Houston Methodist Hospital (S.D. Texas 06/12/2021) [PDF].

A hospital in Houston announced that everybody had to get vaccinated or they're going to get fired. So, a bunch of employees got up a lawsuit and they brought four claims, all of which were rejected by the judge.

First, they claimed wrongful termination. But in Texas, that means … it has to be an employee who has refused to commit an unlawful act. And that's not what was involved in this fact situation.

Second, they argued that the vaccine has not been fully approved by the Food and Drug Administration. And of course that's true. But that has no effect whatsoever on what a private employer can do in terms of requiring its employees to be vaccinated.

Third, they said there's a federal law that provides protection for humans that are involved in trials. But  the judge said, well, this wasn't a trial. This was requiring people to get vaccinated — period.

Fourth, they brought up the Nuremberg Code, which was designed to get at the Nazi medical experiments during the late 30s and early 40s. And the judge, of course, found that “reprehensible.”

So in Texas at least the employer can require employees to be vaccinated or they're going to lose their jobs and find work somewhere else.

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.