Supreme Court Unanimous in Retaliation Case

Today's decision in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09) was certainly not the hardest case for the Supreme Court to decide, nor was the decision unexpected. However, the unanimous holding that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII re-enforces that this is not a court that is at all interested in reigning in the law of retaliation.

Justice Souter's opinion in fact was quite harsh in characterizing the position of the employer, its amici support and the 6th Circuit panel which wrote the appealed decision, holding "nothing in the statute requires a freakish rule ...."

Justice Alito, joined by Justice Thomas felt it necessary to try to confine Justice Souter's holding by noting in his concurrence:

The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here.

Justice Alito was concerned about the impact of Justice Souter's words:

And we would call it "opposition" if an employee took a stand against an employer’s discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.

The case was decided under the opposition as opposed to the participation clause, because the employer's investigation was based on an internal complaint rather than an EEOC charge. Whether that was too limited a view of the participation clause was not addressed by the Court, but given the Court's consistent holdings in retaliation cases, if you were a betting person, you should probably guess that if asked, this Court would say yes it was.

Besides reaffirming that this Court is a firm supporter of protection against retaliation, it also makes it more likely that employers will find retaliation raised in more cases. Employees, suffering an adverse employment action (a burdened lessened three years ago in Burlington Northern v. White) now have a lower burden in claiming that at some point they had "opposed" an unlawful practice.

Although Justice Alito argues that "opposition" still requires more than silence, it is by no means certain that view will ultimately carry the day. And today's decision makes it much more likely that cases presenting that precise question will be forthcoming.

75% Have an Opinion on the EFCA

Mark Ambinder of Atlantic has an interesting posting on two different polls, one of which garners 75% in favor of the Employee Free Choice Act, the other 74% against it. Poll v. Poll: How Each Side Describes "Card Check." The difference, as any student of polling knows, is how you ask the question. To get different results you either describe the EFCA as:

"[a]llows employees to have a union once a majority of employees in a workplace sign authorization cards indicating they want to form a union."

or, describe it this way

"would effectively replace a federally supervised secret ballot election with a process that requires a majority of workers to simply sign a card to authorize organizing a union and the workers' signatures would be made public to their employer, the union organizers and their co-workers. "

Ambinder goes on give his description of what the EFCA does:

Now -- EFCA doesn't eliminate secret ballot elections. Since the National Labor Relations Act was passed, there have always been two ways to join a union, either through "card check" or a ballot election. Current law allows companies to force an election, even if a majority of workers have signed up. In effect, EFCA switches the choice to the workers; they can choose whether to hold a card check election or whether they want a regular secret ballot election. Effectively, EFCA would increase the frequency of card check elections, which are easier for unions to win. (emphasis added)

Unfortunately, he takes a union talking point that is being widely circulated that is technically true, but like the name of the bill, in actuality misleading.

It is technically true that under the EFCA as now drafted, if between 30 and 50% of employees sign authorization cards, a secret ballot election is the method in which whether there is a union is determined. The reality is that unions almost never file a petition for an election unless they have 60 or 70% of authorization cards.

The reason: unions know that they have hit their high water mark in support at the filing of the petition. Once a campaign is undertaken, in which both management and the union present their views, the unions lose support. If the EFCA is adopted, not only will there be no secret ballot in almost every case, but just as importantly, there will be no opportunity for a campaign where both sides -- the pro's and con's -- of having a union in that particular workplace can be articulated.

In this age of new politics, it would be nice if both sides on this controversial and very significant issue, make their points based on reality not deception. Ironically the use of the true but misleading statement points out a fundamental flaw of the premise of the bill. If the union supporters of the legislation rely on statements that are technically true, but still misleading, what might they say to an individual employee to get him or her to sign an authorization card? And if that should occur, wouldn't the assurance of a campaign where both sides are presented, followed by a secret election, be the perfect antidote for such behavior?

Certainly unions are not the only ones that are guilty of misinformation in union campaigns, nor in all likelihood the fight over whether the EFCA will pass. Perhaps it is too much, even in a week where Americans are more optimistic than they have been in long time about the tenor of our future politics, to ask that both sides voice the real arguments in support of their positions, not rely on rhetoric that may be true, but misleading. It is no doubt naive, but it would certainly be nice.

And of course, this post only addresses one of three significant areas of change that would be brought about by the EFCA. A second, binding interest arbitration to ensure an initial agreement, is a fundamental restructuring of one the premises of existing labor law . That's a subject for a different post, but it would at least be nice to think that before such a fundamental change is made, it at least be openly debated.

Update (1/24/09): Mark Ambinder has a follow up post, Poll v. Poll: AFL-CIO's Pollster Responds To Mike Murphy. In it the AFL-CIO pollster attacks the wording of the question which elicits 74% support against the bill. Here is his first argument.

Most importantly, the central claim is simply false, as you say in your post: the law does not replace or eliminate elections. That alone invalidates the question as a measure of public opinion.

The statement that the EFCA doesn't do away with elections is repeated a 2nd time. As noted above, while technically true, it's a very misleading statement.

Big Handslap for the EEOC From the 5th Circuit

I have mentioned in the past how the last week in September often sees an influx of suits filed by the EEOC, see here, but one of those suits has now come back to bite the Commission.

In EEOC v. Agro Distribution (5th Cir. 1/15/09) [pdf] the Court upheld the district court's granting of summary judgment against the Commission in a disability claim, and its award to Agro of its attorneys fees for time spent after the deposition of the plaintiff which made clear that he did not have a viable claim. The amount awarded $225,000.

Although attorneys fees were awarded only post-deposition, it was clear that the courts were not impressed with the EEOC's handling of the investigation or conciliation process as well as the basic claim. After detailing some of the issues (and also finding that the failure to conciliate does not deprive a court of jurisdiction) it concluded as follows:

The EEOC must vigorously enforce the Americans with Disabilities Act
and ensure its protections to affected workers, but in doing so, the EEOC owes
duties to employers as well: a duty reasonably to investigate charges, a duty to
conciliate in good faith, and a duty to cease enforcement attempts after learning
that an action lacks merit. In this case, the EEOC abandoned its duties and
pursued a groundless action with exorbitant demands. The district court
appropriately granted summary judgment for and awarded attorneys’ fees to
Agro, and its judgment is AFFIRMED.

Although it is taxpayer's money that is being expended, for anyone who has had to deal with unreasonable demands from the Commission, can't help but feel a little pleased at the reminder that the EEOC owes duties to employers as well.

First Two Votes on Employment Law Issues for New Congress

The House of Representatives has easily passed two employment law bills directed toward compensation issues. The bills and the votes in the House by party are:

HR 11, the Lilly Ledbetter Fair Pay Act -
Democratic Yeas 244 Democratic Noes 5
Republican Yeas 3 Republican Noes 166
Total Yeas 247 Total Noes 171

15 Members who did not vote.

HR 12, the Paycheck Fairness Act -
Democratic Yeas 246 Democratic Noes 3
Republican Yeas 10 Republican Noes 160
Total Yeas 256 Total Noes 163

14 Members who did not vote.

These were pretty much a foregone conclusion. Although it might be closer in the Senate, I would expect both to pass.

In other Washington news, Secretary of Labor designate Hilda Solis had about a two hour confirmation hearing, with very few tough questions and no tough questions where answers were demanded. No question that she will be confirmed.

A "Bully" Professor Goes Online

Those who have read my prior posts or heard one of my presentations on the topic of bullying, will be familiar with the name, David Yamada. He is the law professor who drafted the uniform anti-bullying legislation that has been introduced in several different state legislatures.

Professor Yamada, is now on line with his own blog, Minding the Workplace, and in his New Year's Day post, Immersion in the Twisted World of Abuse at Work provides some background on how he became interested in the subject.

Clearly Professor Yamada is adding an interesting voice to the little niche of the blogosphere dealing with labor and employment law. If you are an HR practitioner you should check out his post HR Was Useless. It's an interesting perspective that may hit a little too close to home for some.

Welcome Professor Yamada.

A Bad Comination for 2009

With the Obama administration expected to place a much higher emphasis on OSHA enforcement, news that workplace fatalities for 2007 in Texas were the highest in 6 years, is not a good combination. Texas experiences spike in workplace fatalities.

The leading causes of Texas workplace death?

• highway crashes (132),
• falls to lower levels (72),
• homicides (70)
• being struck by an object (47).

Homicides is that one that surprises me.

Last week the Washington Post article, Under Bush, OSHA Mired in Inaction, was a less than flattering look at the agency. Expect the approach to be quite different under Secretary Solis and whoever ends up as head of OSHA.