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Senate vote defeats Employee Free Choice Act -- for now.
In a 51-48 vote almost completely along party lines, the US Senate fell nine votes short of the 60 it needed to stop debate and move to final consideration of the union-backed Employee Free Choice Act (EFCA).
Democrats and union leaders vow to continue to fight for passage of the bill, while Republicans and business groups promise to work equally hard to prevent the bill from ever becoming law. Although a renewed effort by Democrats is likely, it will probably not occur until after the 2008 presidential election.
The EFCA seeks to eliminate secret-ballot elections as the method by which employees choose whether or not to be represented by a union and replace them with so-called “card check” procedures. Under card check, a union would automatically be recognized as the exclusive bargaining representative if a majority of employees in the proposed bargaining unit sign a card indicating they want to be represented by the union. Another section of the bill seeks to institute mandatory arbitration to settle the terms of the first contract between an employer and union if the parties cannot agree on terms on their own within 90 days.
Opponents of the bill argue that elimination of the secret ballot will lead to unfair pressure on employees, who may feel compelled to sign authorization cards if asked to do so by coworkers or union members. Proponents contend that the bill will streamline the process of union recognition and eliminate the opportunity for employers to commit unfair labor practices.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Daily Labor Report No. 123, June 27, 2007, pg. AA-2].
Comments about employee’s accent sufficient to demonstrate evidence of national origin discrimination.
An employee who quit his job after he failed to obtain several promotions could move forward on his claim of national origin discrimination, based on allegations that his supervisor made negative comments about his accent.
Plaintiff Rodriguez had worked for FedEx as a driver for several years when he expressed interest in becoming a supervisor. He began internal management training and then applied for an open supervisory position. During the interview process, Rodriguez learned that his direct supervisor had told several other FedEx managers that Rodriguez was difficult to understand because of his accent, and that his speech patterns would likely make it difficult for him to move up at the company.
The plaintiff complained to various managers about the comments, but no action was taken. Rodriguez then quit his job and filed a lawsuit alleging discrimination based on national origin. The court first held that negative comments about an employee’s accent could support a claim of national origin discrimination, because accents are so closely linked to a person’s ethnicity. Next, the court explained that the comments constituted direct evidence of discrimination by FedEx, meaning that if they are believed, then unlawful discrimination was at least a motivating factor in the employer’s actions. The burden then shifted to the company to show that it would not have promoted Rodriguez even absent the discriminatory motive. The company argued that it did not promote Rodriguez because he failed to complete the training course, and because the company had an internal policy against promoting drivers directly to supervisory positions. The appellate court sent the case back to the trial level to decide whether the company’s reasons were sufficient to overcome the finding of a discriminatory motive.
Supervisors may not realize that comments about an employee’s accent could be evidence of discrimination. This case stresses how important it is for employers to train managers and supervisors to avoid making comments about employees that could be interpreted as disparaging their background or national origin.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see In re. Rodriguez, 2007 US App. LEXIS 15244 (6th Cir. June 27, 2007)].
Employee who was terminated during a reduction in force showed that age, not performance, may be the real reason she lost her job, because the supervisor that selected her for termination had recently given her an excellent performance review.
A 53-year-old longtime Boeing employee was terminated during a reduction in force after her supervisor gave her a lower score than a 36-year-old coworker during an evaluation to determine who would be laid off. She sued, arguing that the real reason she was selected for termination was her age, not her evaluation.
The court agreed that the plaintiff provided enough evidence to cast doubt on Boeing’s reasons for selecting her for termination. First, the same supervisor who gave the plaintiff a low score during the reduction in force had recently and consistently given her excellent performance reviews. Although he had mentioned minor concerns with her filing ability in the past, the comments had never affected the plaintiff’s performance reviews until the reduction in force, when they suddenly formed a significant basis for her low score. Additionally, during the reduction in force evaluation, the supervisor decided on his own to eliminate one category from consideration. This category -- knowledge of HR systems -- was the one in which the plaintiff had always received a perfect score in the past. The decision to eliminate that category lowered the plaintiff’s overall score considerably.
The court explained that the combined actions of the supervisor were enough to raise a question about the real reason the plaintiff was selected for termination. It would be up to a jury to decide whether there was enough evidence to conclude that the real reason she was fired was her age.
It is critically important for employers to train supervisors about the proper way to conduct employee evaluations. Many supervisors and managers are hesitant to give real critiques, even if an employee needs to improve in certain areas. But overly positive performance evaluations can hurt the employer later if it wants to discipline or discharge an employee who believed he was doing fine at work.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Cotter v. The Boeing Co., 2007 2007 US Dist. LEXIS 45995 (E.D. Pa. June 26, 2007)].
Law firm’s arbitration agreement imposed on all employees as condition of employment is procedurally and substantively unconscionable.
A former paralegal is not required to arbitrate her overtime claims against her former law firm, because the arbitration agreement she signed is not binding, the Ninth Circuit recently held.
Pursuant to the agreement, employees agreed to waive their right to go to court and instead arbitrate any employment dispute with the law firm. In this case, the court found that the agreement suffered from both procedural as well as substantive unconscionability, and the unconscionable provisions could not be severed from the agreement without destroying its purpose and meaning.
First, the agreement was procedurally unconscionable because it was offered to employees on a “take it or leave it” basis. Even though the employees were given three months to decide if they wanted to accept the agreement or look for a new job, the fact remained that there was no opportunity for negotiation over the agreement’s terms. On its own, a “take it or leave it “ provision is per se unconscionable, even though the law firm did not engage in other procedural missteps, such as undue pressure to sign or surprise or concealment regarding key terms.
Next, four of the agreement’s terms were substantively unfair. The unfair provisions included a term setting a one-year filing deadline for claims, which was shorter than the regular statute of limitations for statutes governing wage and hour matters; a strict confidentiality provision, which favored the law firm by prohibiting employees from mentioning the existence of the case even to other employees who may have relevant knowledge; a provision exempting the firm -- but not the employee -- from arbitrating certain claims for injunctive relief; and a provision prohibiting the employee from filing claims with administrative agencies other than the Equal Employment Opportunity Commission (EEOC) or the comparable state agency. Given the broad scope of the unconscionable provisions, the entire agreement was unenforceable under California law.
State law governs the rules for whether an arbitration agreement is lawful or not. Employers should consult with experienced employment counsel before requiring their employees to sign such agreements to make sure they do not contain unlawful provisions.
-- Elaine S. Fox, Esq., Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP
[For more information, see Davis v. O’Melveny & Myers, 2007 US App. LEXIS 11265 (9th Cir. May 14, 2007)].
