Keeping Up With the NLRB: Agency Releases Updated Outline of Law and Procedure in Representation Cases.
18 September 2017 | National Labor Relations Board, Unions and Union Membership | David Pryzbylski
The web of rules imposed by the National Labor Relations Board (NLRB) on union elections always is rapidly evolving. From the “quickie election rules” implemented by the NLRB in April 2015 to decisions altering the types of misconduct that can be used to “re-run” a vote, it can be hard to keep up.
One great resource available to employers is the NLRB’s “Outline of Law and Procedure in Representation Cases,” which summarizes and offers information on NLRB cases dealing with a vast array of issues, including scope of bargaining unit, supervisory status, and objectionable conduct. On Sept. 14, the NLRB released an updated version that includes references to recent cases in this area. For anyone interested in union elections (including union avoidance), it is a critical resource and can help ensure compliance with NLRB requirements.
Denial of Lateral Transfer Can Be Adverse Employment Action
USA September 21 2017
Why it matters
Denying an employee a lateral transfer can be an adverse employment action, the U.S. Court of Appeals, D.C. Circuit recently held, vacating an earlier panel decision. An employee of the U.S. Department of Housing and Urban Development (HUD), Samuel Ortiz-Diaz, observed what he believed to be a discriminatory work environment, with a supervisor who referred to Hispanic employees as the “hired help,” for example. Ortiz-Diaz asked for a lateral transfer out of the D.C. office where he worked, but his request was denied, despite the fact the agency had a policy of permitting such transfers and other, nonminority employees had their requests granted. He sued, and a district court granted summary judgment in favor of HUD, holding that the denial of a lateral transfer request was not an adverse employment action. Although the D.C. Circuit initially affirmed, the three-judge panel then sua sponte decided to reconsider the case, vacating the initial opinion and reversing the summary judgment ruling. In a new opinion, the court concluded that the denial of an employee’s request for a lateral transfer could be a materially adverse action under Title VII, reversing and remanding the case.
Detailed discussion
Samuel Ortiz-Diaz began his career with the U.S. Department of Housing and Urban Development (HUD) in the Hartford, CT, office, transferring to Washington, D.C., in 2009 with the hopes of enhancing his career prospects. There, Ortiz-Diaz observed what he believed was a discriminatory work environment fostered by a supervisor.
The supervisor referred to Hispanics as “hired help,” said that all Latinos “look alike,” and involuntarily transferred Ortiz-Diaz and an African-American investigator to Mississippi in the wake of Hurricane Katrina over Ortiz-Diaz’s protest, even though nonminority investigators who protested were not transferred. Ortiz-Diaz also learned of discrimination complaints filed against the supervisor by other workers.
Concerned about his future prospects, Ortiz-Diaz requested a transfer to Hartford or Albany pursuant to HUD’s no-cost voluntary transfer program. Involved in the approval process was the allegedly discriminatory supervisor, who denied both requests without explanation. Ortiz-Diaz resigned a few months later and filed a Title VII lawsuit.
A district court judge granted HUD’s motion for summary judgment, ruling that denial of a lateral transfer did not constitute an adverse employment action under the statute. On first review, the U.S. Court of Appeals, D.C. Circuit affirmed. But the three-judge panel then sua sponte decided to reconsider the case and vacated its opinion.
After a second pass at the case, the panel reversed summary judgment in favor of the employer and remanded the case.
“Ortiz-Diaz’s allegation of harm, that he was denied a transfer away from a racially and ethnically biased supervisor to a non-biased supervisor more likely to advance his career, falls within Title VII’s heartland,” the court said. “Although lateral transfers to different positions within a Department offering the same pay and benefits are ordinarily not changes in the ‘terms, conditions, or privileges of employment,’ a discriminatory denial of a lateral transfer away from a biased supervisor can certainly be actionable under Title VII, given the adverse impact on the employee’s potential for career advancement.”
Nothing in the court’s precedent required a contrary result, the panel noted, and other circuits have reached a similar conclusion, including the First, Second and Seventh.
The plaintiff’s Title VII claims “involve far more than a mere dislike of” the supervisor, or a subjective preference to work in another office location, the court wrote. Instead, “Ortiz-Diaz proffered evidence that [the supervisor’s] bias against minorities would have hindered his career advancement if he remained at headquarters, and that a transfer to work under [another boss’s] supervisor would have improved the likelihood that his career could advance based solely on merit.”
Title VII promises Ortiz-Diaz “nondiscriminatory consideration for [a no-cost transfer] where consideration is held out as a privilege of employment,” the court added.
Further, the panel found that the plaintiff provided sufficient evidence to allow a reasonable juror to find in his favor, as he offered his statements about the opportunities available to him at the other offices and the statements made by the supervisor indicating his bias. In addition, HUD confirmed that other discrimination complaints had been made against the supervisor and a coworker filed an affidavit about the supervisor’s bias.
“[I]n the context of Ortiz-Diaz’s particular claim, it logically follows that the stronger his showing that [the supervisor] discriminated against him in denying the transfers, the stronger his claim that remaining with [the supervisor] at headquarters would have materially harmed his career,” the court said.
To read the opinion in Ortiz-Diaz v. U.S. Department of Housing and Urban Development, click here.
Opioid Crisis Spills into the Factory
Opioid abusers cost employers nearly twice as much in health-care expenses as their clean co-workers — an extra $8,600 a year.
Bloomberg [2] | Sep 20, 2017
At Philip Tulkoff’s food-processing plant in Baltimore, machines grind tough horseradish roots into puree. “If you put your arm in the wrong place,” the owner says, “and you’re not paying attention, it’s going to pull you in.” It’s not a good place to be intoxicated.
Drug abuse in the workforce is a growing challenge for American business. While economists have paid more attention to the opioid epidemic’s role in keeping people out of work, about two-thirds of those who report misusing pain-relievers are on the payroll. In the factory or office, such employees can be a drag on productivity, one of the U.S. economy’s sore spots. In the worst case, they can endanger themselves and their colleagues.
That’s why Tulkoff practices zero-tolerance. One randomly chosen employee gets tested every month, “and we’re gonna move it to two.” The costs mount up: He has to hire a third-party company to select the worker, and pay the clinic to conduct tests. Money is wasted training workers who subsequently drop out when they fail the screening.
Then there are the added care costs. Castlight Health, a benefits platform, estimates that opioid abusers cost employers nearly twice as much in health-care expenses as their clean co-workers — an extra $8,600 a year.
‘Can’t Do It’
It’s no wonder that not every boss is as rigorous as Tulkoff. “I know people who’ve said, ‘I can’t do it, I would lose too many people’,” he says.
At the moment, 57% of employers say they perform drug tests, according to the National Safety Council. Out of those, more than 40% don’t screen for synthetic opioids like oxycodone — among the most widely abused narcotics, and one of the substances that new federal rules are targeting.
Starting next month, many federal government employees who take drug tests will have to submit to a more extensive screening — one response to a spiraling crisis. Opioids killed about 33,000 Americans in 2015, more than any other year on record. Private companies aren’t obliged to follow Washington’s lead, but in such areas they often do.
Factories, with their heavy machinery, are where drug-abusing workers can do the most immediate harm to themselves and their colleagues. Even there, employers are tempted to look the other way, according to Mike Galiazzo, president of the Regional Manufacturing Institute of Maryland.
“I have heard manufacturers over the years say, ’We wish we didn’t have to test for drugs,’ because they lose money when they can’t fill those positions,’’ he said.
Hiring is becoming tougher in any case. While the economy has steadily added jobs since the financial crisis ended, the available pool of workers hasn’t expanded to match. The share of working-age Americans in the labor market is stuck at about 63%, down more than four percentage points since 2000 — the same period in which the opioid epidemic took off. There’s an “extreme shortage of skilled workers,’’ Galiazzo says.
Drugs are probably at least partly to blame for that, too. There’s a growing consensus among economists that opioid abuse has contributed to the shrinking workforce. Fed chair Janet Yellen has flagged the issue. Princeton’s Alan Krueger estimates that drugs may account for one-fifth of the drop among men.
‘Completely Unproductive’
For businesses, the labor squeeze plus the opioid crisis are making it especially hard to expand quickly when they get new orders, says Drew Greenblatt, owner and president of Marlin Steel Wire Products LLC in Baltimore, which makes industrial-strength metal baskets used in factories. “We just nailed a huge job and we need to hire three people,’’ he said. “We’re banging our heads against the wall.’’
And there’s no guarantee that new hires will stick around. Drug problems are accelerating the turnover among staff.
“In the last three weeks, we’ve had six people come, get trained, and then are no-call, no-shows,’’ Greenblatt said. He said the biggest loss comes from taking high-performing employees out of the production process so they can train new hires. “That person is diverted into the completely unproductive task of teaching someone who’s going to leave in a day or two.’’
Productivity growth in the U.S. economy has been slowing for decades. There’s little consensus about the causes. But there are signs that the spread of drug-abuse could be contributing to the problem.
‘Saw Him Injecting’
The National Safety Council survey found that 29% of employers reported impaired job performance due to prescription-painkiller use, while 15% cited an injury or near miss that they attributed to the drugs. As many as 70% said their workforce had been affected in some way.
In some cases, the growing drug problem puts employers in the position of having to fire employees who’d been doing their jobs perfectly well.
“We caught someone recently, saw him injecting,’’ said Jay Steinmetz, chief executive of Barcoding Inc. The Baltimore company creates software, and provides equipment, that helps businesses manage their inventory. It’s a desk environment, with none of the grinding machinery that poses risks for Tulkoff’s staff.
Still, “once we witnessed this we were forced to take action,’’ or break the law, Steinmetz said. “Could he have worked with opioids in his body? Absolutely.’’
He concludes that the problem for employers isn’t just the opioid epidemic, but the legal regime that’s emerging to combat it: “A huge interruption of business.’’ Steinmetz is well aware of the human costs too: One of his smartest technicians, “a savant genius kid,’’ died almost a decade ago from recreational Oxycontin.
‘Detection Window’
As awareness grows, prescription of such painkillers has been leveling off, and deaths from prescription drugs have stabilized.
But in some cases, users are switching to heroin or illegal synthetics like fentanyl. Not only are those drugs more dangerous, they can also be difficult to catch. Heroin metabolizes very quickly. Fentanyl isn’t usually one of the substances screened for.
“The detection window in a urine drug test is relatively short,’’ said Barry Sample, the director of science and technology at Quest Diagnostics, a health-care and drug-testing company. If an addict can substitute something else for heroin or gets temporarily clean, “you’re probably not going to find anything a week later.’’
Tulkoff describes what happened the last time one of his workers was subjected to random tests, which have led to the firing of four employees in the past five years, out of a staff of about 80 at the Baltimore plant.
The employee went to the clinic and provided a sample that wasn’t at the right temperature, an indication that it was probably someone else’s urine. He then sat at the clinic until it closed, without giving another one.
When he returned after the weekend for a second test, “that one came back clean,’’ Tulkoff said. “It’s very suspicious. But unfortunately, we don’t have any hard evidence.’’ That happened a couple of weeks ago; since then, he’s decided to double the rate of testing.
By Catarina Saraiva, Patricia Laya and Jeanna Smialek
Why Business-Friendly Reforms Are Sparking Street Protests in France
The country’s sacrosanct labor code has been fiercely guarded by unions—but the president has his own ideas.
Updated on September 21 at 6:56 a.m. ET
After decades of fraught attempts at reforming France’s sacrosanct labor code, French President Emmanuel Macron will use a presidential decree Friday to push through a series of business-friendly reforms. The aim is to give greater leeway to employers and to tackle the country’s near double-digit unemployment rate. It’s an ambitious plan for a new leader like Macron, and one that has already prompted street protests by labor unions opposed to it. But the 39-year-old leader, armed with a parliamentary majority, remains undeterred.
“I was very clear during my campaign about the reforms,” Macron told CNN’s chief international correspondent Christiane Amanpour Tuesday. “I explained those reforms, I presented those reforms during weeks and weeks, and I was elected on those reforms. I do believe in democracy, and democracy is not on the street. They voted.”
The reforms, which Macron described as a “Copernican revolution,” mark a significant overhaul of the country’s century-old labor code, Le Code du Travail. First developed in the early 20th century during a period of rapid industrial growth, French labor laws span nine books and thousands of pages, detailing everything from the rules around hiring and firing employees, to those that govern collective bargaining. Despite attempts by previous governments to reform the code, France’s powerful unions have long thwarted any serious changes. Macron learned this firsthand during his brief tenure as economy minister under former Socialist President François Hollande, whose attempt at passing similar reforms sparked nationwide protests that ultimately resulted in the final versions being watered down.
But this time is different. Though Macron’s reforms, like those of his predecessors, were met with large-scale protests, attendance was markedly lower than in past years. Compared to the protests Hollande’s government faced in 2016, in which approximately 400,000 people took to the streets, last week’s protest staged by the General Confederation of Labor (CGT), France’s second-largest union, drew a crowd of only 220,000 (CGT claimed 400,000). The dip in attendance could be attributed in part to the decision by French Democratic Confederation of Labour (CFDT) and Force Ouvrière, two of the country’s largest unions, to not formally participate in the strike.
But Dr. David Lees, a researcher of French politics at Warwick University, told me there’s more to it than that. “One of the issues for low engagement at demonstrations typically has been that union membership in France is much lower than comparable Western European countries like the U.K.,” he said. “The unions don’t have the same kind of grip over the workers like they used to in France.”
Compared to its neighbors, France’s labor union membership is among Europe’s weakest. Only 8 percent of France’s employees are union members, down from 20 percent in 1960. That 8 percent, in turn, is divided into several competing national unions, led by the three most-popular: the CDFT, the CGT, and Force Ouvrière. Though the unions cater to different sectors (CGT is popular among rail and energy workers, whereas many of CFDT’s members are lorry and van delivery employees) and political persuasions (CGT was linked to the French Communist Party, whereas Force Ouvrière’s founders denounced it), together they wield a considerable amount of power over the employment and pay conditions of French workers—both union and non-union members alike.
Macron’s labor reforms would change that influence. Under current law, labor unions lead sector-wide collective bargaining negotiations between workers and employees. The proposed reforms, however, would allow workers and employees within individual firms to negotiate the agreements themselves. “Union collective bargaining covers over 95 percent of the labor force,” Dr. Alison Johnston, an associate professor of political science specializing in labor markets and collective bargaining politics at Oregon State University, told me. “If small businesses are free to negotiate contracts with their employees individually, this will cut out the influence of the unions on their employment contracts.”
But that isn’t the only controversial change these reforms would bring. Macron’s proposal would also establish a set limit to the amount of damages employers would have to pay workers in the event of wrongful termination—a change many critics say will allow employers to more easily fire people. “If you ask people what they know about the Macron reform, they will not talk about the labor union—they will talk about the limitation of damages,” David Jonin, a partner specializing in employment and social protection law at Paris-based law firm Gide, told me. “For the people in the streets, this measure is the measure.”
Fortunately for Macron, his ability to adopt these reforms doesn’t hinge on public approval. The government has opted to push through the measures using a presidential decree, and though the new rules will eventually require parliamentary approval before they can become law, Macron’s overwhelming majority ensures he’ll get the institutional support he needs. “At the very beginning of your mandate, you have political capital—you have to use it,” Macron told Amanpour. “I don’t mind to be very high in terms of popularity, and so on. My country has to be reformed. I have 10 percent unemployment rate, I have almost 25 percent of my young people being unemployed. It’s useless to have political capital and stay in such a situation.”
Just because Macron may not need public support now doesn’t mean he won’t come to rely on it later. Though currently buoyed by a sound parliamentary majority and a weak and fragmented political opposition, the young leader could run into trouble if his reforms fail to give the French economy the kickstart they’re expected to—especially once the time for reelection comes around.
“The biggest asset Macron has right now is time,” Johnston said. “He is at the start of a long five-year presidential term, so if he can push these labor market reforms through quickly and if they manage to make a dent in France’s unemployment rate … he could ride out current opposition now and capitalize on potential beneficial effects later.”
And if they don’t?
“Macron has largely proven unwilling to negotiate, and he is burning goodwill with unions in the process,” Johnston said. “This may come back to haunt him four years from now.”