Abood back on the SCOTUS chopping block

SCOTUS was expected to finally pull the trigger and overrule Abood v. Detroit Bd. of Ed. last year in Friedrichs v. California Teachers Ass'n. The setup:

Abood recognized that compulsory public union dues could violate the First Amendment for certain ideological or political speech... but allowed the compulsory fees for collective bargaining. I'll broadly generalize the argument in Friedrichs as: Any time a public union is negotiating with the state, it is engaging in political speech; and forcing people to pay fees to support that activity violates their First Amendment rights. In other words, the carve-out for collective bargaining in Abood should be ruled unconstitutional.

Everyone expected Abood to fall last year . . . but, then, Justice Scalia died. The end result was an even split on an 8-member Supreme Court, which meant that Abood lived to see another day.

It certainly looks like its days are numbered though. This morning, the Supreme Court granted certiorari in Janus v. AFSCME, addressing the issue:

Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment.

It will presumably all come down to Justice Gorsuch. If I were a betting man, I'd start playing taps about now. 

Can employers fire employees for attending Charlottesville protests?

I'm sure you've already heard about the violence in Charlottesville this past weekend, and you've probably heard about the efforts to get the white supremacist protesters fired. Is is legal for employers to fire employees for attending the protests?

Generally

Generally, yes. Private employers can generally fire employees for any reason or no reason at all unless it conflicts with some established law or public policy (we call this "at will" employment). By now, you probably already know the lawyerly caveat you're about to get here . . . but, it depends. In fact, this may be one of the most convoluted issues ever to grace this fine blog.

NLRA

Why isn't this like the Google memo guy (which I analyzed here). Google memo guy was working with his co-workers to address the terms and conditions of his employment with his employer ("protected concerted activity" under the NLRA). I have heard nothing to suggest that the Charlottesville protesters were engaged in this sort of protected activity. Also, as Jon Hyman notes, other exceptions may apply.

"Just Cause"

However, there are a few situations that strike me as a little dicier. For example, many employees have individual employment contracts or union collective bargaining agreements that require "just cause" for termination. The "just cause" determination is very case-specific and varies a little based on jurisdiction.

It's usually harder for the employer to establish just cause for a termination based on off-duty conduct. To give you a sense of what's required, Pennsylvania looks at these factors:

First, the nature of the job is an important consideration; an employee in a 'sensitive position' may be subject to dismissal if only to avoid the appearance of impropriety whereas an employee in a non-sensitive position may not . . . . A second relevant factor is whether the conduct in question demonstrates a lack of judgment that erodes confidence in an employee's character . . . . A third factor concerns safety. An employee whose job it is to protect the safety of others is expected to behave in a manner consistent with this goal even while off duty.

City of Phila. v. City of Phila. Civil Svc. Comm'n. Employers must also establish a "nexus" between the off-duty conduct and the employee's ability to perform the job. Established employee policies come into play too.

So, I really can't provide you with a blanket rule, because every situation is different. What job does the employee have? What was (s)he actually doing? Each situation requires individualized analysis, and we may see different results depending on whether the employee was a klansmen punching someone or just some gawker; a neo-nazi or some sort of free speech activist; or maybe just some poor parent who picked a *really* bad weekend to take their kid on a college visit to UVA. The facts matter. And, of course, don't get the wrong guy (example here).    

Free Speech

Private employees generally don't receive First Amendment protections in employment. However, public employees do. Broadly speaking, public employees have a right to speak on matters of public concern while acting as private citizens. Public employers are generally prohibited from retaliating against public employees for First Amendment protected speech. However, once again, this is a complex area of the law - I'm just throwing out some general considerations.

State Laws

As usual, I present this with the caveat that states have myriad laws that I'm simply unfamiliar with. For example, the D.C. Human Rights Act prohibits employment discrimination based on political affiliation; Colorado prohibits employment termination for lawful outside-of-work activities; and Connecticut applies something like First Amendment free speech protections even to private employees (ask Dan Schwartz - I don't know anything about it).

Conclusion

Somebody could write an entire book on all of the legal issues raised by firing employees who attended Charlottesville. Most of the time, employers can go ahead and pull the trigger; but, there are a ton of mines in that field.

Fifth Circuit cool with union micro-units

Not official use.

Just a quick entry to note the Fifth Circuit's decision in Macy's, Inc. v. NLRB. The Court granted the NLRB's motion to enforce its order certifying a bargaining unit.

The bargaining unit consisted of cosmetics and fragrances employees at a single Macy's department store. Macy's argued that the smallest appropriate bargaining unit would have been "a wall-to-wall unit of all [of that location's] store employees, or, alternatively, all selling employees at the store." The Fifth Circuit held (paraphrasing), "nah, the mico-unit is cool with us."

The Court showed considerable deference to the NLRB, which applied its 2011 micro-unit holding in Specialty Healthcare.

Just in from SCOTUS: Compulsory public union fees for collective bargaining survive

It was supposed to be a ginormous (that's a word, right?) labor law decision. In Friedrichs v. California Teachers Ass'n, the Supreme Court was going to decide:

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and  

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

 In other words, can public sector unions collect mandatory fees from employees who don't want to pay those fees?

Abood recognized that compulsory public union dues could violate the First Amendment for certain ideological or political speech... but allowed the compulsory fees for collective bargaining. I'll broadly generalize the argument in Friedrichs as: Any time a public union is negotiating with the state, it is engaging in political speech; and forcing people to pay fees to support that activity violates their First Amendment rights. In other words, the carve-out for collective bargaining in Abood should be ruled unconstitutional.

Abood suffered some criticism and setbacks in recent Supreme Court decisions (like Knox v. SEIU and Harris v. Quinn). Friedrichs was going to finally pull the trigger... it was going to kill the Abood carve-out once and for all. But then, Justice Scalia died.

The end result? The United States Supreme Court split 4-4, which means the 9th Circuit opinion relying on Abood was affirmed. As I stated on Twitter:

Just in: Abood lives, because Justice Scalia died. Friedrichs affirmed by equally divided court in per curiam opinion. #SCOTUS

— Philip Miles (@PhilipMiles) March 29, 2016

Mandatory fees for collective bargaining by public unions appears safe. For now. Although the Supreme Court issued only a per curiam opinion with no analysis, we know they were "equally divided" (presumably split 4-4). Will the Court take up this issue again when they're back at nine? We'll see.

New NLRB Guidance on Quickie Election Rules

Not official use.

The NLRB's new "quickie election" rules - more recently dubbed "ambush elections" by employers - are set to take effect on April 14, 2015 (one week from today). If you were just sitting around thinking, "I wish there was a clear, concise, 36-page memo to explain the changes" . . . then great news! The NLRB's General Counsel just published Memorandum GC 15-06: Guidance Memorandum on Representation Case Procedure ChangesEffective April 14, 2015. Enjoy!

SCOTUS Kills Yard-Man

When you were growing up, did you ever have a teacher return an assignment and tell you everything you did wrong... but not give you the right answer? Instead, you were just supposed to try again and figure it out for yourself? That's pretty much what Justice Thomas just did to the 6th Circuit.

On Monday, the Supreme Court issued its opinion in M&G Polymers USA LLC v. Tackett. Sometimes, employers and unions enter into collective bargaining agreements (CBAs) that provide health care benefits for retirees. The CBA usually has a set lifespan (three years is common). The issue here is whether the retiree health care benefits continue only until the CBA dies, or until the retirees die. Put another, did the CBA create a vested right to a lifetime of health care benefits?

Justice Thomas,
official portrait public domain.

Of course, the parties could have just specified the answer in the CBA - but what fun would that be? The Sixth Circuit, through a series of cases (Yard-Man and its progeny) created a presumption in favor of the retiree benefits vesting (and therefore continuing indefinitely) if a CBA was silent on the issue. Cue Justice Thomas for a unanimous court:

As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law.

In other words, "You know that Yard-Man presumption you've been applying? STOP IT!" But the Court never actually gives us the answer (i.e. whether the benefits vested or not in this case).

Justice Thomas just tells the lower courts to apply "ordinary contract principles," and then reminds us of some of them. For example, "the traditional principle that courts should not construe ambiguous writings to create lifetime promises" and "the traditional principle that 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.'"

Justice Ginsburg (joined by the rest of the liberal bloc) wrote a concurring opinion, noting some other principles. Like, "[C]onstraints upon the employer after the expiration date of a collective-bargaining agreement . . . may arise [from] implied terms of the expired agreement." And, if the CBA is ambiguous, the Court "may turn to extrinsic evidence—for example, the parties’ bargaining history" to determine if the parties intended the health benefits to vest.

Now go back and try again, 6th Circuit, and remember what Justice Thomas told you.

Teacher's Racist Twitter Rant and the Law

Have you heard the one about the teacher who got fired over a racist Twitter rant about Ferguson? To recap, she posted some lovely gems, such as

Who the (expletive) made you dumb (expletive) crackers think I give a squat (expletive) about your opinions. #Ferguson Kill yourselves.

The teacher, an African-American woman, then clarified her views:

You exhibit nigga behavior, I'm a call you a nigga. You acting crackerish, I'm a call you a cracker."

And then the school board clarified its view, which I'll paraphrase as "you're fired!"

This story has generated a fair amount of media buzz, which means lots and lots of Internet comments. In this post, I clear up some recurring misconceptions about employment law in this area.

Error #1: At-will employment! She can get fired for anything!

Yes, most states are "at-will" and this generally means employers can terminate the employment relationship for any reason so long as it does not violate a specific statute (like an anti-discrimination statute for example). But there's another exception: contracts. And teachers are very often in unions. And those unions have a collective bargaining agreement (CBA). And those CBAs often require "just cause" for termination.

Would this Twitter rant constitute "just cause"? Maybe. The rant appears to be off-duty conduct, and not directly related to her employment, which could make establishing just cause difficult. That said, it's not hard to create a tie-in to her employment - if you were white, would you want a teacher who calls white people "crackers" teaching your son or daughter? Is "Kill yourselves" the type of civil discourse you want your child learning?

I'm going to lump the next two errors together because they are both First Amendment-related:

Error #2: First Amendment! She can't get fired for expressing her opinions!
Error #3: She didn't go to jail, the First Amendment only prevents criminal prosecution, it doesn't protect your employment. 

Errors 2 and 3 are both a little right and a little wrong. Generally, the First Amendment does not protect employees from getting fired. And generally, the First Amendment only applies to government action, such as criminal prosecution. But, the First Amendment protects public employees (like public school teachers) from getting fired in some circumstances.

The First Amendment protects public employees who speak as citizens on matters of public concern. Here, the teacher is discussing Ferguson in a public forum - so she probably gets some First Amendment protection, but how much?

Under the Pickering test, the Court’s role is to “balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Township High Sch., 391 U.S. 563, 568 (1968).

Here, the school could argue that the comments interfere with its efficient operation for the same reasons I described under Error 1. Racist vitriol and telling people she disagrees with to kill themselves make it very difficult for white students and/or people who disagree with her to feel safe in her class. Her Twitter comments appear to affect her job as a teacher. That said, she could argue (assuming it's true) that she has treated everyone equally in her classes and that she fosters civil discussion in the classroom - her off-duty comments have no impact on that.

The point here is that the legal issues with teachers are complex. Both sides in this situation have arguments they could present to a court or jury. Ignoring the legal issues, the practical takeaway here is: don't call people racial slurs and advocate their suicide on social media.

SCOTUS Arguments on Retiree Benefits in CBAs

I love it when current events perfectly align with my lesson plan for my employment law class at Penn State. Yesterday, we discussed health insurance and the reading assignment included this tidbit:

Unionized employees have had some success in arguing that retiree health benefits obtained through collective bargaining are not revocable, particularly in the absence of any clear contract language authorizing the employer to modify or terminate the benefits.

Employment Law for Human Resource Practice (4th Ed.) by David J. Walsh, p. 452. As luck would have it . . . this exact issue was before the Supreme Court on Monday!

The case is M&G Polymers USA, LLC v. Tackett, and you can read the transcript from the oral arguments here. The issue is whether retiree health benefits in a CBA vest immediately and continue indefinitely or if they are subject to change (most notably upon termination of the CBA).

Of course, the parties could specify that in the CBA - but life's never that easy. What happens if the CBA is silent on the subject? Do we look outside the CBA to discern the parties' intent? Will the Court impose a presumption one way or the other?

As I told my class yesterday, if the Court imposes a strong presumption (regardless of whether it's a presumption that the benefits vest and continue, or do not survive the termination of the CBA), that should solve the problem moving forward. The parties will simply know what the "default" is and if they want something else, they can bargain for it and include express language overriding the presumption in the CBA.

We'll have to wait and see what SCOTUS does with this one . . . .

SCOTUS Grants Cert. in Retiree Benefits / Collective Bargaining Case

On Monday, the Supreme Court granted certiorari in M&G Polymers U.S.A. v. Tackett. You can view the order here and the SCOTUSblog case page here. SCOTUS limited its grant to only the first question presented in the petition for certiorari:

1. Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.

As you can see, Third Circuit (my home circuit) precedent is on the line here.

3d Cir. on Severability of Indefinite CBA Termination Clause

The Third Circuit recently issued an interesting non-precedential opinion in the world of collective bargaining: Int'l Union of Op. Engineers, Local Union No. 542 v. Allied Erecting and Dismantling Co. (opinion here).

The setup is pretty simple. Management and the union entered into a CBA with a severability clause and the following termination clause:

[T]his Agreement shall terminate upon [Allied’s] completion of the [Fairless Hills PA dismantling] Project. As to any jobsite to which this Agreement is extended on a jobsite-by-jobsite basis[,] . . . the Agreement and [Allied’s] recognition of the Union for employees employed at such jobsite shall terminate upon the completion of [Allied’s] work at such jobsites.

Can you spot the issue? I've gotta say - this is a tough one (it would make a good bonus question for a labor law prof).

The Third Circuit held that the termination clause afforded the employer the power to extend the CBA to new jobsites at its discretion. Therefore, the agreement was for an indefinite term - a no-no under the NLRA. In the words of the Court, "The agreements are indefinite because one party unilaterally controls the termination event."

So, what did the Court do about it? The Court relied on the agreements severability clause to carve out the language that made the agreement indefinite - i.e. the language extending the agreement on a "jobsite-by-jobsite" basis. The end result being that the agreement would terminate upon completion of the Fairless Hills project.

This is some new ground in the Third Circuit, and they relied heavily on decisions from other circuits.

HT: I get these great emails about once a month from the FBA Labor and Employment Law Section with interesting cases from the Circuit Courts of Appeals. That's where I saw this case.

Breaking: SCOTUS Decides "Changing Clothes" Wage and Hour Case

This just in: The U.S. Supreme Court has decided what constitutes "changing clothes." Belive it or not, it's actually an important issue. The opinion is Sandifer v. U.S. Steel (available here).

Justice Scalia, for a unanimous court (except Sotomayor opts out of footnote 7), makes my job easy by providing a cut-and-paste-able description of the issue:

The question before us is the meaning of the phrase“changing clothes” as it appears in the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq. (2006 ed. and Supp. V). . . . Petitioners point specifically to 12 of what they state are the most common kinds of required protective gear: a flame-retardant jacket, pair of pants, and hood; a hardhat; a “snood”; “wristlets”; work gloves; leggings; “metatarsal” boots; safety glasses; earplugs; and a respirator. At bottom, petitioners want to be paid for the time they have spent putting on and taking off those objects. In the aggregate, the amount of time—and thus money—involved is likely to be quite large. Because this donning-and-doffing time would otherwise be compensable under the Act, U. S.Steel’s contention of noncompensability stands or falls upon the validity of a provision of its collective-bargaining agreement with petitioners’ union, which says that this time is noncompensable. The validity of that provision depends, in turn, upon the applicability of 29 U. S. C. §203(o) to the time at issue. That subsection allows parties to decide, as part of a collective-bargaining agreement,that “time spent in changing clothes . . . at the beginning or end of each workday” is noncompensable.

So, what's the bottom line? Does putting this stuff on and taking it off count as "changing clothes," thus allowing the parties to collectively bargain to render it noncompensable?

The short version is that almost all of that stuff sounds a lot like "clothes" to the Court. So almost everything was properly excluded as noncompensable. The Court noted that some of the stuff - safety glasses, earplugs, and a respirator - might not be "clothes." But, the Court does not require a minute-by-minute breakdown of how much time is spent on those particular items. Instead:

[I]f the vast majority of the time is spent in donning and doffing “clothes” as we have defined that term, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.

Another SCOTUS labor and employment law case is in the books.

Does CBA Arbitration Clause Preclude Statutory Discrimination Lawsuit? - COTW #114

The Case of the Week comes to us from the Eastern District of Pennsylvania: Harrell v. Kellogg Co., 2012 WL 3962674 (Sept. 11, 2012). The plaintiff filed racial discrimination, retaliation, and hostile work environment claims against his employer under 42 U.S.C. s1981. The employer filed a motion to dismiss, arguing that a mandatory arbitration provision in the collective bargaining agreement (CBA) divested the Court of jurisdiction.

The CBA contained a generic arbitration provision, mandating that all grievances were subject to arbitration. In turn, grievances were defined as "disputes or disagreements concerning the interpretation and application of the provisions of this Agreement." Working our way down, the CBA's provisions included a broad nondiscrimination provision. So, the employer argued that the CBA mandated arbitration of grievances; grievances cover disputes over provisions; and the provisions included nondiscrimination - therefore the employee had waived his right to bring suit in federal court.

The Court does an amazing job of explaining this issue, and detailing the relevant precedent. I highly recommend reading the whole opinion, but cutting to the chase, the Court held:

[A] prerequisite to enforcing arbitration of federal statutory claims is that the waiver in the CBA "must be clear and unmistakable" . . . . [the leading cases] lead to the clear conclusion that a CBA with a general arbitration provision and a nondiscrimination provision that does not expressly mention the federal antidiscrimination statute under which the employee seeks redress, does not contain an explicit waiver to the employee's right to litigate his/her statutory claims in a judicial forum.

As the Court noted, the nondiscrimination provision in the CBA at issued did not explicitly reference s1981, the statute under which the employee filed suit. Therefore, the CBA did not clearly and unmistakably waive the plaintiff's right to bring his statutory discrimination claims in federal court. Accordingly, the Court denied the employer's motion to dismiss.