SLF LABOR AND EMPLOYMENT ALERT April 2009

RECENT GUN TRAGEDIES SERVE AS REMINDER TO IMPLEMENT WORKPLACE SAFETY PROGRAMS

Recent shootings in Binghamton, NY and elsewhere serve as a tragic reminder of the dangers of workplace violence. According to the U.S. Department of Labor, homicide is the fourth-leading cause of fatal occupational injury in the United States. The Occupational Safety and Health Administration has published guidelines for employers on the issue of workplace violence and the implementation of a workplace safety plan. While the guidelines do not have the force of law and are not intended to formally impose obligations on employers, they do serve as a useful guide for employers wishing to put a workplace violence plan into place. Additional information may be found at: www.osha.gov/SLTC/workplaceviolence/
standards.html.

COBRA MODEL NOTICES AVAILABLE FOR USE BY EMPLOYERS

In our March 2009 Special Edition of the SLF Labor and Employment Law Alert, we discussed the promulgation of forms by the IRS for use by employers who must implement the Stimulus Bill’s COBRA benefit to laid off employees. Since our last report, the U.S. Department of Labor has created four model notices employers may use to provide notice to affected employees of their right to COBRA continuation coverage at 35% of the normal cost. The four notices are:

Model Notice 1 – For beneficiaries who lost or lose group coverage between 9/1/09 and 12/31/09.

Model Notice 2 – For beneficiaries receiving unsubsidized COBRA benefits.

Model Notice 3 – For individuals who lost their jobs between 9/1/08 and 2/16/09.

Model Notice 4 – Describes the right of individuals working in states with “mini-COBRA” statutes (i.e., employers who employ less than 20 employees) to receive COBRA subsidies. (Note: Florida has a “mini-COBRA” statute).

The model notices and other useful information may be found on the Department of Labor’s website at: http://www.dol.gov/ebsa/COBRA.html.

SUPREME COURT UPHOLDS MANDATORY ARBITRATION OF DISCRIMINATION CLAIMS ARISING FROM COLLECTIVE BARGAINING AGREEMENTS

The United States Supreme Court recently upheld a contractual provision requiring the arbitration of statutory discrimination claims where the parties’ collective bargaining agreement required that discrimination claims be submitted to arbitration instead of court. In 14 Penn Plaza LLC, et al., v. Steven Pyett et al., the Court resolved several earlier cases which called into question the enforceability of the contractual requirement to arbitrate employment discrimination claims. In upholding mandatory arbitration provisions, the Court reasoned that where such mandatory arbitration term expressly addresses statutory discrimination claims, such provisions are “conditions of employment” as defined by the National Labor Relations Act (“NLRA”) and thus are subject to collective bargaining. Absent specific congressional prohibitions on the use of arbitration, employers and their unions are free to negotiate and implement mandatory arbitration provisions for statutory discrimination claims.

This decision may have significant impact on the litigation of discrimination claims. Parties to a collective bargaining agreement should review their existing contract to see if current arbitration provisions expressly include statutory discrimination claims. If they do not, the inclusion of such provisions may significantly reduce litigation expenses and should be considered for future contract negotiations. Employers should also review currently pending litigation to determine if such actions may be covered by an enforceable arbitration provision. The complete opinion may be found at http://www.supremecourtus.gov/opinions/08pdf/07-581.pdf.

U.S. SUPREME COURT UPHOLDS IDAHO LAW PREVENTING PAYROLL DEDUCTIONS FOR UNION POLITICAL ACTIVITIES

In a case that will likely have repercussions nationwide, the U.S. Supreme Court recently upheld an Idaho law that prohibits public employees from authorizing payroll deductions for union political activities. In Ysursa v. Pocatello Education Association, 555 U.S. ___ (2009), a group of unions representing Idaho public employees challenged a state law which allowed those employees to use payroll deduction for union dues, but not for contributions to be made directly to the union’s political action committee. The unions claimed that such a law infringed on the employees’ First Amendment rights to free speech, but the Court held that the law doesn’t prevent free speech, but rather it declines to promote that speech by allowing “public employee checkoffs for political activities.”

Prior to 2003, employees could authorize both a payroll deduction for general union dues and a payroll deduction for union political activities conducted through a political action committee in Idaho. In 2003, the Idaho Legislature passed the Voluntary Contributions Act, which specifically prohibited payroll deductions for any political purposes, not just those affiliated with unions. The unions brought suit, alleging that the law singled them out and suppressed free speech. The Court disagreed, stating “While in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones.” Finding no infringement of the First Amendment, the Court held that the State only needed a rational basis to justify the ban on political payroll deductions, and that the state’s interest in avoiding the reality or appearance of governmental favoritism or entanglement with partisan politics met the necessary standard.

This ruling will have a direct affect on the payroll services provided by unionized employers, and on the methods chosen by unions or other organizations to fund distinct departments or programs which may have a political nature. A copy of the Court’s decision may be viewed at: http://topics.law.cornell.edu/supct/cert/07-869.

EMPLOYERS NOT LIABLE FOR TECHNICAL VIOLATIONS OF THE FMLA

The Eleventh Circuit Court of Appeals has held that the Family and Medical Leave Act does not provide relief for technical violations of its provisions. In Demers v. Adams Homes of Northwest Florida, Inc., No. 08-13044 (11th Cir. March 20, 2009) the court found that even though the employer violated the FMLA by denying the employee leave, because the employee was unable to articulate any harm suffered as a result of the denial, the order granting summary judgment in favor of the employer should be affirmed. To establish harm, an employee need not always prove monetary damages. However, according to the court, employees must be able to demonstrate at least some harm as a result of the violation. A copy of the decision may be viewed at: http://www.ca11.uscourts.gov/unpub/ops/200813044.pdf

Past Issues of SLF Labor and Employment Alert Posted on Website

You may view past issues of the SLF Labor and Employment Alert on the “Publications” page.

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