Category: Labor & Employment

NLRB Permits Micro-Units In Specialty Healthcare Decision

Recently posted in the National Law Review an article by Mark A. Carter of Dinsmore & Shohl LLP regarding NLRB’s controversial decision to overturn 20 years of precedent:

In one of its most controversial decisions to date, the National Labor Relations Board (“NLRB”) has overturned 20 years of precedent and will now permit unions to organize a minority share of an employer’s workforce. As a result of this decision, organized labor will be able to establish footholds in businesses where the majority of the employees may not desire to be represented by a union. 

On August 26, 2011 the NLRB released its decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In Specialty Healthcare, the United Steelworkers petitioned for a representational election in a bargaining unit that was very distinct from the typical “wall to wall” unit. For decades, the NLRB has concluded that where employees share a “community of interest” that the appropriate bargaining unit in a representational election should include all of the employees of the employer who are similarly situated. Typically this type of unit is called a “wall to wall” bargaining unit and its common description includes all “production and maintenance” workers employed by the employer excluding clerical, administrative and security employees. This scope of employees insured that the union would be elected where the majority of the employer’s employees desired to be represented by a union, but that where a majority of the employees did not desire to be represented, their terms and conditions of employment, and their workplace, would not be impacted by the presence of a labor union. Moreover, the “wall to wall” unit insured that there was not a fracturing of the employer’s workforce where several unions represented several small groups of employees making the collective bargaining unmanageable for any of the parties.

This logical and longstanding policy of Democratic and Republican majority labor boards has been scuttled.

In Specialty Healthcare, the employer operates a nursing home and rehabilitation center in Mobile, Alabama. Among the job classifications – or job titles – at this facility is a “CNA”, or, certified nursing assistant. Rather than seeking to represent all of the employer’s employees, the union petitioned for a bargaining unit consisting only of the CNAs. The employer objected on the basis of the NLRB’s decision in Park Manor Care Center, 305 NLRB 872 (1991) and the Board’s longstanding practice of not certifying “fractured” units but insisting that all of the employer’s employees who shared a community of interest comprised an appropriate bargaining unit. The NLRB, through a regional director, initially concluded that this petition was appropriate and directed an election be held amongst only the employer’s full and part time CNAs. The employer appealed this decision, in essence, by asking the NLRB to review the regional director’s decision. The NLRB not only accepted this obligation but requested briefs from interested parties regarding whether its decision inPark Manor and its longstanding practice of certifying only bargaining units of all of the employees with a community of interest should remain the law. Significantly, the NLRB also requested interested parties’ positions regarding whether its decision should have application in all industries rather than just the health care industry which maintains unique standards under the National Labor Relations Act.

After inviting and, presumably, considering this argument, the NLRB reversed the Park Manor decision and will now permit appropriate units to be petitioned-for and certified even when larger and “more appropriate” bargaining units exist in the employer’s workforce.

“Nor is a unit inappropriate simply because it is small. The fact that a proposed unit is small is not alone a relevant consideration, much less a sufficient ground for finding a unit in which employees share a community of interest nevertheless inappropriate.”

To that end, the NLRB wrote that it will focus on the community of interest of the employees, the extent of common supervision, interchange of employees, geographic considerations “etc., any of which may justify the finding of a small unit.” An employer can challenge the determination regarding the composition of the unit, but the Board will now require that the burden to establish that a bargaining unit is not appropriate will be an “overwhelming” community of interest between the employees in the petitioned-for unit and the larger workforce.

“…when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or other similar factors) and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit…”

The NLRB did agree that cases may exist where the petitioned-for unit inappropriately “fractured” the workforce. For example, had the union petitioned only for CNAs working the night shift vs. all employees, or only CNAs working on the first floor and not the second floor, but it is eminently clear that the Board will direct elections and certify bargaining units of employees simply because they have one job title or job function and permit the union to ignore the other employees with distinct job titles or functions even when that means that the minority of the employees overall support the union. The reality is that all of the employees will have to deal with the union.

Employers should take no stock in some press suggestions that this decision has limited application to the health care industry. There is no holding or assurance that the rule is limited to the health care industry merely because the case arose within the health care industry. Rather, employers will be well served to heed the opening of Member Brian Hayes dissent which is absolutely accurate:

“Make no mistake. Today’s decision fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.”

© 2011 Dinsmore & Shohl LLP. All rights reserved.

The Truth about Clean Energy Jobs

Recently posted in the National Law Review an article by U.S. Department of Energy in response to The Washington Post’s assertions  about the Department of Energy’s loan programs:

The Washington Post’s assertions today about the Department of Energy’s loan programs are both incomplete and inaccurate.

Here are the facts: over the past two years, the Department of Energy’s Loan Program has supported a robust, diverse portfolio of more than 40 projects that are investing in pioneering companies as we work to regain American leadership in the global race for clean energy jobs. These projects include major advances for our renewable power industry including the world’s largest wind farm, several of the world’s largest solar generation facilities, and one of the country’s first commercial-scale cellulosic ethanol plants. Collectively, the projects plan to employ more than 60,000 Americans, create tens of thousands more indirect jobs, provide clean electricity to power three million homes, and save more than 300 million gallons of gasoline a year, all while investing in American competitiveness. What matters to the men and women who have those jobs is that the investments that this Administration is making are helping to keep factories open and running.

When the Washington Post claims that the program has created 3,500 jobs, here is what the reporters are excluding:

  • 33,000 American auto jobs saved at Ford. The Post article does acknowledge that the program enabled Ford to modernize its factories to produce more fuel efficient vehicles, which a Ford spokeswoman credits for “helping retain the 33,000 jobs by ensuring our employees can build the fuel-efficient cars people want to drive.”
  • More than 7,300 construction jobs. Many of the projects funded by the program are wind and solar power plants, which create significant numbers of construction jobs but once built can be operated inexpensively without a large workforce. But the Washington Post chose to ignore all of those jobs. If a community built a new highway or a bridge that employed 200 workers directly during construction – and many more in the supply chain — and that also strengthened the local economy by making it faster to transport goods, would anyone say that the project created zero jobs?
  • Supply chain jobs. While these jobs aren’t reflected in official government estimates because of the difficulty in obtaining a precisely accurate count, that doesn’t mean they don’t exist. When a company spends $100 million or $200 million building a wind farm or a solar power plant, most of that economic value actually goes into the supply chain – creating huge manufacturing opportunities for the United States.

In fact, when you look at the Washington Post’s graphic, you can see that the program has already created or saved roughly 44,000 jobs.  Many of the projects it has funded are just getting going, and many of the loans won’t even go out the door until the next few weeks. Others have not ramped fully up to scale. But we are on pace to achieve more than 60,000 direct jobs – and many more in the supply chain.

Here’s a simple example:

Last year, the Department awarded a loan guarantee to build the Kahuku wind farm in Hawaii. It employed 200 workers during construction. Those wind turbines were built in Cedar Rapids, Iowa. The project also features a state of the art energy storage system supplied by a company in Texas. The supply chain reached 104 U.S. businesses in 21 states. But by the Washington Post’s count, none of those jobs – not even the 200 direct construction jobs – should count.

What’s critically important and completely ignored by the Washington Post, is that the value of this program can’t be measured in operating jobs alone. The investments are helping to build a new clean energy industry here in America. We are now on pace to double renewable energy generation from wind and solar from the time the President took office. Yet we are still in danger of falling behind China and other nations that are competing aggressively for leadership in these technologies. This is a race we can and will win, but only if we make these investments today. These investments will pay dividends not just in today’s jobs but in entire industries and supply chains – and in cleaner air and water for our children and grandchildren.

One of the goals of the program is to create projects that will encourage the private sector to take the financing risk on other, similar projects on its own. If we can show, for example, that a commercial scale cellulosic biofuel plant in Iowa can succeed, the private sector will likely finance many more of them around the country.

America’s economic strength has been built on technological leadership. The next great technological revolution is the clean energy revolution, and this Administration is committed to making sure that America will continue to lead the world.

Department of Energy – © Copyright 2011

Ninth Circuit Finds Grocers’ Revenue-Sharing Agreement Must Go Through Full Rule of Reason Check-Out

Recently posted in the National Law Review an article by attorney  Scott Martin of Greenberg Traurig, LLP regarding Sitting en banc and affirming a district court decision, the U.S. Court of Appeals for the Ninth Circuit recently held:

Sitting en banc and affirming a district court decision, the U.S. Court of Appeals for the Ninth Circuit recently held in California ex rel. Harris v. Safeway, Inc.,[1]that an agreement among four large competing Southern California supermarket (“chains”) to share revenues during a labor dispute was neither protected from antitrust scrutiny under the non-statutory labor exemption nor so inherently anticompetitive as to be condemned per se or evaluated under a truncated “quick look” test. Rather, the agreement — which reimbursed to a chain targeted by a strike an estimation of the incremental profits, for a limited period of time, on sales that flowed to the other chains in the arrangement as a consequence of the strike — was subject to traditional rule of reason analysis, balancing any legitimate justifications against any substantial anticompetitive impacts.

Dissenting in part, Chief Judge Kozinski (joined by Judges Tallman and Rawlinson) stated that the majority’s “groundbreaking” ruling on the inapplicability of the non-statutory labor exemption was “very likely an advisory opinion,” and had “no basis in the record, common sense or precedent.”

The case arose from circumstances surrounding 2003 labor negotiations between local chapters of the United Food and Commercial Workers (UFCW) union and three of the supermarket chains that, with the union’s consent near the expiration of the labor contract, formed a multi-employer bargaining unit to negotiate. Along with the fourth chain (which also had a labor agreement that expired within months), the supermarket chains entered into a Mutual Strike Assistance Agreement (MSAA). The MSAA provided that if one of the chains was targeted for a selective strike or picketing (a so-called “whipsaw” tactic by which unions increase pressure on one employer within a bargaining unit), the other chains[2] would lock out all of their employees within 48 hours. As part of the MSAA, the chains also entered into a revenue-sharing provision (RSP), under which any of them that earned revenues during a strike or lockout above their historical shares relative to the other chains would pay 15 percent of those excess revenues to the other chains in order to restore their pre-strike shares.[3]

After negotiations with the UFCW broke down, a strike ensued. Picketing was focused on only two of the chains in the bargaining unit, and lasted for approximately four-and-a-half months. The two picketed chains ultimately were reimbursed under the RSP to the tune of approximately $146 million.

While the strike was underway, the State of California filed suit, claiming that the RSP was an unlawful restraint of trade under Section One of the Sherman Act.The grocers sought summary judgment on the ground that the RSP was immune from Sherman Act scrutiny pursuant to the non-statutory labor exemption, which shield certain restraints from Sherman Act challenge in order to allow for meaningful collective bargaining. The State also sought summary judgment on the grounds that the provision was unlawful per se, or should have been analyzed under an abbreviated (“quick look”) analysis. The district court denied both motions, and the parties pursued a streamlined appeal, after agreeing to a stipulated final judgment for defendants under which the State would not pursue the theory that the RSP was unlawful under a full rule of reason analysis, and the grocers would not pursue their affirmative defenses other than the non-statutory labor exemption.

On appeal to the Ninth Circuit, the original panel (in an opinion by Judge Reinhardt, who dissented in part[4]from the later en banc opinion that requires a full rule of reason analysis) considered the history of profit-sharing arrangements and the circumstances and details of the chains’ arrangement, applying a “quick look” analysis of sorts, and concluded that the RSP was likely to have an anticompetitive effect. The Ninth Circuit panel rejected the application of the non-statutory labor exemption, and also found that “driving down compensation to workers” as a consequence of the agreement did not constitute “a benefit to consumers cognizable under our laws as a ‘pro-competitive’ benefit.”[5]The Circuit then agreed to hear the case en banc.

In the en banc decision, the majority declared that “novel circumstances and uncertain economic effects” of the RSP required “open discovery and fair consideration of all factors relevant under the traditional rule of reason test,” thus approving the district court’s original determination of the proper standard. The Ninth Circuit majority acknowledged that application of the full test was “not a simple matter,” but concluded that “[g]iven the limited judicial experience with revenue sharing for several months pending a labor dispute, [it could not be said] that the restraint’s anticompetitive effects are ‘obvious’ under a per se or quick look approach.” The court distinguished the RSP from other profit-pooling arrangements subject to stricter scrutiny on the grounds that, by its terms, the RSP (i) was effective only for a limited and unknown duration, thus arguably preserving incentives to compete during the revenue-sharing period; and (ii) did not include all participants in the relevant markets, leaving other competitors in the market who could discipline pricing.

However, the majority then opined that the RSP was not entitled to protection from antitrust analysis under the non-statutory labor exemption. In so doing, the court distinguished the supermarket chains’ RSP from the agreement among a group of NFL teams to unilaterally impose terms and conditions from a lapsed collective bargaining agreement that was considered in the U.S. Supreme Court’s decision in Brown v. Pro Football, Inc., 518 U.S. 231 (1996) (holding that the non-statutory labor exemption may extend to an agreement solely among employers). The Ninth Circuit majority determined that revenue-sharing is not an accepted practice in labor negotiations with a history of regulation; does not play a significant role in collective bargaining; is not necessary to permit meaningful collective bargaining; does not relate to the “core subject matter of bargaining” (wages, hours and working conditions); and restricts a business or “product” market, not a labor market.

Because the State of California had stipulated to a dismissal in the event that it did not prevail on a categorical basis under a per se or quick look analysis (which it did not), Chief Judge Kozinski wrote in dissent that the majority had in effect written an impermissible advisory opinion, and had gone “out of its way to rule on thenon-statutory labor exemption.” Chief Judge Kozinski went even further, however, In his view, “all of the relevant Brown factors weigh heavily in favor of exempting the RSP from antitrust review.” This was not a case of employers using a labor dispute as a pretext for price-fixing, but rather one of employers responding to union strike tactics, and then only to the degree that the tactics were effectively deployed. According to Chief Judge Kozinski, adding to strikes “the additional threat of antitrust liability — with its protracted litigation, unpredictable rule of reason analysis and treble damages — will no doubt force employers to think twice before entering into a revenue-sharing agreement in the future” and, contrary to precedent and policy, force employers “to choose their collective-bargaining responses in light of what they predict or fear antitrust courts, not labor law administrators, will eventually decide.”[6]

With the Ninth Circuit having effectively elevated the antitrust laws over the labor laws, one might postulate a fair chance of a petition for certiorari being accepted by the U.S. Supreme Court in this case implicating significant questions of both law and public policy. Unfortunately, in light of the stipulated dismissal, such review may have to wait, as the grocery chains may lack standing, let alone incentive, to seek it here.

[1]Nos. 08-55671, 08-55708 (9th Cir. July 12, 2011).

[2]The fourth chain, which was not in the original multi-employer bargaining unit, was not required by the MSAA to engage in the lockout.

[3]The RSP would be in effect until two weeks following the end of a strike or lockout, and it required the chains to submit weekly sales data for an eight-week period prior to the strike or lockout to a third-party accountant.

[4]Judges Schroeder and Graber joined in Judge Reihardt’s partial dissent.

[5]California ex rel. Brown v. Safeway, Inc., 615 F.3d 1171, 1192 (9th Cir. 2010).

[6]Quoting Brown, 518 U.S. at 247.

©2011 Greenberg Traurig, LLP. All rights reserved.

 

Coming Home: Service Members Bring Value, Benefits to Workplace

Posted in the National Law Review an article by Drew B. Millar of Dinsmore & Shohl LLP regarding a significant number of returning servicemen and women are out of work:

Among the millions of Americans who are out of work are a significant number of returning servicemen and women. Many employers are distracted by the host of employment issues that can arise in employing these individuals and, to some extent, their families. Among the applicable laws are the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Family and Medical Leave Act (FMLA).

While an understanding of the rights afforded to servicemembers by these statutes is essential, employing these individuals provides much more than a sense of patriotism for employers. Specific tax incentives exist (and more have been proposed) to get these individuals back to work. Many possess unique skills and abilities that would be an asset to any workforce. This article provides simple guidance about the laws that employers need to be aware of that impact the hiring of veterans and provide incentives for doing so.

USERRA mandates that employees be given a leave of absence to serve in the uniformed services and prohibits discrimination against employees because of their service. USERRA applies to all public and private employers regardless of size. This leave of absence can be as long as five (5) years and there are specific pronouncements on how the leave can be treated and what benefits the employee is entitled to while on qualifying leave. After the employee’s period of service has ended, the employer has an obligation to re-employ the individual in the same or similar position depending on the length of the leave period.

The FMLA also has a leave provision specifically designed to protect injured servicemembers and their families. While employees must have worked at least 1,250 hours during the preceding twelve-month period, under USERRA, an employee returning from fulfilling his or her National Guard or Reserve Military obligation shall be credited with the hours of service that he or she would have performed (based on pre-service work schedule) but for the period of military service to meet this requirement.

Military Caregiver leave or Covered Servicemember leave permits a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of unpaid leave during a rolling twelve-month period to care for a injured member of the Armed Forces, National Guard, or Reserves. A covered servicemember also includes a veteran “who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness” if the veteran was a member of the armed services at any time in the five years preceding the medical treatment. The 12-month period to be used for purposes of tracking this leave entitlement begins when the employee starts using his or her leave. Therefore, it is possible that the 12-month period utilized for tracking other forms of FMLA leave may not be the same as what is being utilized for tracking this entitlement.

Importantly, an employee is not entitled to more than 26 total weeks of FMLA leave including Military Caregiver leave, during the 12-month period that commences with the need for leave. Therefore, an employee is not entitled to 26 weeks of leave to care for a family member under this provision, plus an additional 12 weeks of leave for other FMLA-qualifying reasons. Employees may utilize the 26-week entitlement for each servicemember and for each illness or injury incurred. An employee may take 26 weeks of leave in consecutive 12-month periods for family members covered by this provision.

While these laws may seem to discourage the hiring of our returning servicemembers, employers who wisely elect to recruit such individuals can make a significant dent in their federal taxes. Currently, the Work Opportunity Tax Credit (WOTC) Program provides up to a $2,400 credit if the hired veteran is 1) a member of a family that has received Food Stamps for at least 3 consecutive months in the 15 months prior to the date of hire; or 2) a person with a disability who is participating in a vocational rehabilitation program through US Veteran’s Administration. The aforementioned credit increases to $4800 for disabled veterans who were 1) hired within one year of having been discharged, or released from active duty, or 2) unemployed for any six of the last 12 months. In addition, a majority of states offer partial, or total exclusions, from state-level taxes for combat and/or other military compensation paid to troops/reserves. President Barack Obama also recently proposed a $2,400 tax credit for hiring an unemployed veteran and $4,800 for hiring a veteran who has been unemployed for six months or longer. The existing tax credit for hiring veterans with a service-connected disability would also be raised to $9,600.

Many federal and state programs are also available for these men and women to receive training and be reintegrated into the workforce. Several resources, including Employer Support of the Guard and Reserve (www.esgr.org) and the Department of Labor’s VETS Program (http://www.dol.gov/vets/), provide services to servicemembers and employers to assist in these efforts. The Kentucky Office of Employment and Training also has Veterans Employment Representatives and Disabled Veteran Outreach Specialists specifically assigned to assist veterans with their employment and training needs (http://oet.ky.gov/des/veteran/veteran.asp).

In short, an employer in today’s job market would be wise to actively recruit individuals who have returned from active duty in the military or have the prospect of being called to active duty at some point during their employment. These employees bring valuable skills and hiring them should be a serious consideration of any employer in this economic climate.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

Specialty Healthcare 357 NLRB Decision No. 83: Impact on Nursing Home and Resident Care Industry

Posted on September 6, 2011 in the National Law Review an article by  Joshua W. Pollack of von Briesen & Roper, S.C. regarding a decision for those in the nursing home and resident care industry:

 

Recently, the National Labor Relations Board (NLRB) handed down an important decision for those in the nursing home and resident care industry: Specialty Healthcare, 357 NLRB No. 83. In this decision, the Board redefined the standard for “unit determination” cases for the “non-acute health care industry.” The Board’s conclusion reversed twenty years of precedent and made further unionization in the nursing home industry likely.

The Board’s decision makes unionization more likely because a key factor in the success of an organizing campaign is the size of the bargaining unit. Traditionally, unions fare better when organizing a smaller unit, whereas employers fare better when the union must organize a larger unit. Under the newly announced “traditional community of interest” standard, smaller units will be harder to challenge by employers, and thus are likely to proliferate. The Board summarized the new standard

[when a union] petition[s] for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

Applying this standard, the Board held that a unit of Certified Nursing Assistants was the appropriate bargaining unit because the employer was unable to show that there was a larger group that had an “overwhelming community of interest” that overlapped the interest of the CNAs. In application, this rule will make it harder for employers to challenge prospective units and increase a union’s ability to organize smaller units.

Employers should be aware that Specialty Healthcare gives unions an advantage in their organizing efforts, and as a result employers should take proactive steps to prepare for a potential union campaign, especially those employers in the non-acute health care industry. At a minimum, supervisors should know the warning signs of unionization and how to respond. Supervisors should also be empowered with the information necessary to articulate the company’s position of a union-free workplace with credibility. Lastly, employers should also institute policies that guide employees regarding union solicitation, union access to facilities, and employee uniform policies.

©2011 von Briesen & Roper, s.c

Diversity and Its Impact on the Legal Profession

Recently posted in the National Law Review an article by Jon Minners of Vault Inc. regarding the importance of diversity in law firms:

“Diversity is a very critical element of our society,” said Robert J. Grey, Jr.—a partner at law firm Hunton & Williams—during a keynote speech at the 6th Annual Vault/MCCA Legal Diversity Career Fair, held on Friday, July 29, 2011 in Washington, D.C.

In discussing his path to Washington and Lee University School of Law, Grey engaged the audience with a story about his first meeting with the then-dean of the law school.  While his story was filled with humor, Grey conveyed an important message: rather than judging a book by its cover, the dean gave Grey the opportunity to fulfill his dream of becoming a lawyer.  Grey—who formerly served as president of the American Bar Association—has been an influential voice in the legal profession through his work and his commitments to pro bono and diversity.  He was nominated by President Obama to serve as a Board Member of the Legal Services Corporation—a post he now fills—and also currently serves as the Executive Director of the Leadership Council on Legal Diversity.

“Recognizing talent and giving it a chance – that’s what diversity is about,” said Grey.

Grey’s speech formed a fitting backdrop for the day as hundreds of minority, female, LGBT candidates and candidates with disabilities gathered at the Renaissance Hotel in downtown D.C. to speak with recruiters and hiring partners from law firms, as well as corporate and government employers.  Earlier in the week, candidates and legal employers on the West Coast participated in the career fair at the Westin Bonaventure in downtown Los Angeles.

Vault kicked off the career fair in D.C. by honoring the Top 25 Law Firms for Overall Diversity, Top 3 Law Firms for Diversity for LGBT, Top 3 Law Firms forDiversity for Women and Top 3 Law Firms for Diversity for Minorities. While recognizing that diversity is important throughout all careers, Vault.com‘s Law Firm Diversity Rankings focus on the legal profession. These rankings are the result of a survey taken by close to 16,000 law firm associates throughout the country.  This year, and for the third consecutive year, Carlton Fields was ranked the No. 1 Firm for Overall Diversity.

“This represents how far we have come as a nation and an industry,” said Gary Sasso, President and CEO of Carlton Fields, during the award ceremony.  “We have a very long-standing tradition of diversity.  We like to say we celebrate diversity in all things at all times.  It’s in our DNA.”

And it is fast becoming part of the DNA of many organizations who truly see the potential of a more diverse office makeup.  During a panel discussion moderated by Vault.com law editor Mary Kate Sheridan, various professionals in the legal industry weighed in on the subject and discussed ways to make sure that diversity is not just an idea, but a part of the everyday practice.

“Diversity wasn’t really something on top of anyone’s discussion list in the 80s,” said Jackie Stone, a partner at the law firm McGuireWoods.  “But it is an important discussion today.”

Thomas E. Zutic, a partner at the law firm DLA Piper, stated that because of its importance today, “diversity is not about window dressing.  It’s not a one time, show off to the client aspect of business.”

Stone added: “Clients are watching very closely.  They want to see that diversity continues in terms of who actually gets to do the work.”

Lori L. Garrett, vice president and managing director of the southeast region of theMinority Corporate Counsel Association (MCCA), said that once you recruit diverse talent, the best way to keep them is to make them feel like they are part of the team.  “Mentoring is one of the most important ways anyone can connect to supervisors,” she said.  “They understand what it takes to reach the next level, but diverse employees should not just speak to supervisors.  They need to create relationships everywhere.”

Zutic also noted that diverse candidates need to make sure they take ownership of their careers by making themselves desirable candidates.  “Grades are still important,” he said, noting that students should approach law school as their jobs and perform as well there as they would in their careers.  “It’s so basic, but it’s so important,” he said.  “We can talk diversity, but in the end, if you are not bringing the right skill set and the right credentials, it’s not going to work.”

© 2011 Vault.com Inc.

Connecticut Prohibits Discrimination Based on Gender Identity

Recently posted in the National Law Review an article by Alan M. Koral, Michelle D. Velásquez, Laura Sack, Laura Sack, Lyle S. Zuckerman and Roy P. Salins of Vedder Price P.C. regarding Connecticut employers with three or more employees will be prohibited from discriminating against an employee or applicant based on gender identity or expression.

Effective October 1, 2011, Connecticut employers with three or more employees will be prohibited from discriminating against an employee or applicant based on gender identity or expression. Connecticut lawmakers defined “Gender identity or expression” as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Evidence that may establish gender-related identity includes assertion of the gender-related identity by the individual, care or treatment of the gender-related identity, evidence that the gender-related identity is not being asserted for an improper purpose, medical history, or other evidence that the gender-related identity is a sincerely held element of a person’s core identity. It is clear that the law protects transgendered people who are not undergoing gender reassignment surgery, and who do not intend to do so, as well as those who have completed such surgery or who are in the process of doing so.

The new law adds gender identity or expression—a status also commonly referred to as “transgendered”—as a protected class, affording that class similar rights and remedies as other classes such as race and gender protected under Connecticut law. By doing so, Connecticut joins New Jersey and New York City, both of which prohibit gender identity discrimination.

The one notable exception to the new law’s prohibition of discrimination based on gender identity or expression is the exemption of religious corporations or entities “with respect to the employment of individuals to perform work connected with the carrying on by such corporation . . . of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law” established by the religious entity.

Connecticut-based employers are advised to add gender identity to their EEO policies and literature and to be sure to include gender identity issues in their EEO training, especially training for managers and supervisors. Other employers who have employees in Connecticut (or New Jersey or New York City) should consider revising their policies companywide to include nondiscrimination based on gender identity and to include the new law’s requirements in their training.

© 2011 Vedder Price P.C.

Asbestos Litigation Case Questions Safety in the Workplace

Recently posted in the National Law Review on  an article by C. James Zeszutek and David J. Singley of Dinsmore & Shohl LLP regarding an unsual case  in that the plaintiff worked as a technician servicing laboratory equipment and the alleged asbestos exposures occurred:

Although most would consider asbestos to be an old problem, limited to mainly the manufacturing and construction industries, asbestos has been incorporated into a myriad of products that had many and varied uses. Because asbestos was so pervasive, claims such as the one described below, occurring many years after the last occasions on which asbestos was used and arising from the use of sophisticated equipment in a laboratory, are still prevalent.

Dinsmore attorneys recently handled a premises liability case for a major minerals supply company. The case was unusual in that the plaintiff worked as a technician servicing laboratory equipment and the alleged asbestos exposures occurred into the 1990’s. This is in contrast to the typical asbestos case that usually involves exposure in heavy industry prior to 1980.

The plaintiff in this case initially worked as a technician for a manufacturer of laboratory instruments including thermoanalyzers. A thermoanalyzer is an instrument that allows the user to determine the amount of water in the sample being tested as well as certain other characteristics of the sample as the result of heating the sample to high temperatures. The thermoanalyzer at our client’s premises contained an asbestos paper separator between the “hot” portion of the instrument and the unheated side. The plaintiff testified that whenever he installed or performed service work on the thermoanalyzers, including the one at our client’s laboratory, he was exposed to friable asbestos from the paper separator as well as component insulation on vapor lines contained in the thermoanalyser. The plaintiff also contended that he was exposed to friable asbestos from an asbestos glove and asbestos pad that were provided with the thermoanalyzer. The plaintiff ultimately left his employment with the thermoanalyzer’s manufacturer and started his own business doing the same type of work, namely servicing various laboratory instruments, including thermoanalyzers. Significantly, the plaintiff alleged exposures at our client’s premises into the 1990’s. The plaintiff was diagnosed with mesothelioma, a rare type of cancer which is uniformly fatal and is, except in rare circumstances, a signature disease for asbestos exposure.

The plaintiff’s theory of liability as to our client was that because the thermoanlayzer in our client’s laboratory had asbestos in it, and further because the client had not provided a warning to the plaintiff regarding asbestos in the thermoanalyzers, that our client had breached its obligation to provide a safe workplace for tradesmen at its premises. As is typical in asbestos cases, it was not initially clear what theory of liability the plaintiff was pursuing. It was not until the plaintiff was deposed and additional discovery undertaken that it became apparent that the plaintiff was focusing on the alleged failure to provide a safe work place because of the asbestos containing components in the thermoanalyzer. The case was further complicated because it was filed in New Jersey, where the plaintiff lived, but our client’s premises were located in Pennsylvania. Thus, there was a question as to whether New Jersey or Pennsylvania law would apply. We argued that regardless of which state’s law was applied, as the premises owner, our client did not owe a duty of care to the plaintiff, an independent contractor, who was allegedly injured by the very piece of equipment on which he was hired to work.

The Plaintiff argued that the Olivo v. Owens – Illinois case, a New Jersey Supreme Court Case, required a premises owner to provide a reasonably safe place to work for tradesmen coming on to the owner’s premises, including an obligation to inspect for defective or dangerous conditions. The Olivo case was one in a series of cases in which the New Jersey courts were attempting to address premises liability in terms of a reasonableness standard as opposed to the traditional categories of trespasser, licensee, and invitee, all of which deal with the person’s status while on the premises. In Olivo, the New Jersey trial court granted summary judgment. The New Jersey appellate court reversed and held there were issues of fact regarding the degree of control the premises owner retained over the work, what safety information the premises owner provided, and what the premises owner told the contractor regarding the presence of asbestos on the premises. The Plaintiff argued that these were exactly the same issues in our case.

Dinsmore argued that Pennsylvania law applied (because the premises in question was in Pennsylvania) and in any event, Pennsylvania law was similar to that of New Jersey, namely, that a premises owner does not owe a duty of care to an independent contractor for dangers inherent in the work the independent contractor was hired to perform. Although the court did not overtly address the choice of law issue, it held that our client, the premises owner, did not owe a duty of care to plaintiff because the plaintiff was responsible for his safety on the equipment on which he was working. In granting our motion for summary judgment, the court focused on the premises owner’s lack of any supervision or control over the worked performed by the independent contractor. We also emphasized the independent contractor’s superior knowledge regarding the thermoanalyzer and its components.

Our Advice 

Facilities and equipment managers need to be alert that in facilities built or remodeled prior to the mid-1970’s, or equipment, even laboratory equipment, assembled prior to 1980 and where there was a need for thermal insulation, asbestos may still be present and care should be used in dealing with such equipment. Additionally, although waivers of liability, obtained from the tradesmen coming on the property may provide some legal protection, the facilities and equipment managers should make clear with the tradesmen, or the tradesmen’s employers, that they are being hired for their expertise and knowledge regarding the proposed work and that they are being relied upon to perform the work in a safe manner.

© 2011 Dinsmore & Shohl LLP. All rights reserved.

 

Department of State Releases September 2011 Visa Bulletin

Recently posted in the National Law Review an article by Eleanor Pelta, Eric S. Bord, A. James Vázquez-Azpiri, and Lance Director Nagel of Morgan, Lewis & Bockius LLP regarding DOS recent Visa Bulletin which sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications.

The U.S. Department of State (DOS) has released its September 2011 Visa Bulletin. The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident, or to obtain approval of an immigrant visa application at an American embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.

What Does the September 2011 Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Priority dates remain current for foreign nationals in the EB-2 category from all countries except China and India.

The relevant priority date cutoffs for Indian and Chinese nationals are as follows:

China: April 15, 2007 (no movement)
India: April 15, 2007 (no movement)

EB-3: There is continued backlog in the EB-3 category.

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: July 15, 2004 (forward movement of one week)
India: July 8, 2002 (forward movement of five weeks)
Mexico: November 22, 2005 (forward movement of three weeks)
Philippines: November 22, 2005 (forward movement of three weeks)
Rest of the World: November 22, 2005 (forward movement of three weeks)

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward, or remain static and unchanged. Employers and employees should take the immigrant visa backlogs into account in their long-term planning, and take measures to mitigate their effects. To see the September 2011 Visa Bulletin in its entirety, please visit the DOS website at http://www.travel.state.gov/visa/bulletin/bulletin_5542.html.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved. 

 

Public Education Teacher Selection Process Not So Simple…

A very interesting article recently posted in the National Law Review  by Denise M. Spatafore of Dinsmore & Shohl LLP regarding WV’s legislature rules for determining who receives both teaching and administrative positions in West Virginia public schools.

If you do a Google search for the “qualities of effective teachers,” 4,920,000 results come up within 15 seconds. Obviously, the placement of the best possible educators in our public schools is important to virtually everyone, but determining how that can be accomplished has been, and continues to be, the subject of much debate and, in West Virginia, the subject of some fairly complex legislation.

Prior to the 1990s, the selection of classroom teachers in West Virginia was required by statute to be based on qualifications. In turn, “qualifications” was not defined, allowing for fairly broad and varied interpretations of what made a teacher qualified. Some believed that the lack of specific criteria allowed for selection decisions based on politics or nepotism, rather than actual teaching skills. Therefore, in 1990, the legislature enacted W. Va. Code § 18A-4-7a, which to this day contains very specific rules for determining who receives both teaching and administrative positions in West Virginia public schools.

There are two sets of seven criteria which are applied to applicants for teaching positions, and the factors used depend upon who the applicants are. If all of the applicants are “new” to the particular county (meaning that they are not currently employed in the county or are substitutes, rather than full-time teachers), the seven criteria applied include:

  1. certification for the position
  2. teaching experience in the subject area
  3. degree level
  4. academic achievement
  5. specialized training
  6. performance evaluations
  7. “other measures or indicators upon which the relative qualifications of the applicant may fairly be judged”

When using this so-called “first set of factors,” county administrators are not required to give any particular factor more weight than others, which allows a lot of discretion in determining which applicant is most qualified for the position. It may be the person who had the best interview, or it might be the teacher with the most relevant experience. As long as each applicant’s qualifications are assessed under each criterion, the board of education may hire whomever they want, absent a totally arbitrary decision that simply can’t be justified.

On the other hand, the “second set of factors,” which is used when any teacher employed in the county applies for a position, must be weighted equally. The second set of criteria contains some of the same categories as the first, including certification, degree level, training and evaluations. However, experience is considered in two separate categories:

  1. total teaching experience (regardless of what subject or grade level)
  2. “existence” of experience in the particular area of the posted position

Therefore, under the second set of factors, a teacher will be given credit for the entirety of his or her teaching experience, regardless of whether it was in the subject area of the position for which they are applying.

Another difference between the two sets of factors is that, when currently employed teachers apply, seniority is considered. There appears to be a common misconception among West Virginians and even among teachers that seniority is the only basis for awarding teaching positions, but this is simply not true. Seniority is only one of seven factors considered, and it must be equally weighted, just like the others. However, a possible source of some of the misconception could be that, in many counties, seniority is used as a tie-breaker when two or more applicants have equal qualifications.

Although school principals do have a statutory right to interview teacher applicants, if the second set of factors is in play, there is simply no legal basis to consider the results of interviews. Whether the legislature intended this or not is unknown, but it is a frustrating provision both for the administrators doing the hiring and for the applicants who may or may not be given the opportunity to demonstrate their attributes during an interview.

Also resulting from the requirements of the second set of factors, when both current employees and outsiders apply for teaching jobs, young or new teachers often have difficulty getting positions. Particularly within the field of elementary education, a very popular certification area for teaching students, young teachers often have to do substitute work for years before being able to “break into” the county system and obtain full-time employment.

While proposed changes to the teacher hiring process have been discussed by the legislature for the past several years, none have been successful to date.

© 2011 Dinsmore & Shohl LLP. All rights reserved.