September 2014 Walmart Implements A “Dress Code” (read not a uniform) Walmart recently notified its employees through its internal website that a new dress code would soon be implemented. The dress code requires Walmart associates to wear a white or blue collared shirt with black or khaki pants, capris, or skirts. The goal according to a Walmart executive, is to allow customers to more readily identify employees, increasing customer service and in turn, sales. The legal argument used to bolster the opposition to the dress code, is that because Walmart employees are among the lowest paid workers in the industry, requiring them to purchase uniforms might pull their wages below the federally mandated minimum wage, which would be unlawful. Also, some states like California require employers to reimburse workers for necessary equipment or uniforms not provided by the employer. Walmart has evaded this legal obstacle by referring to the required outfit as a “dress code” rather than a “uniform”, which is accompanied by legal protections of its own. Worker advocates are challenging this recent development and asking courts and legislatures to address the problem by identifying the practice, not the legal terminology; required work outfits are not a dress code, and are in fact a uniform that should be provided or compensated for accordingly. Further aggravating the opponents of the mandatory dress code, Walmart directed its associates to its own website where the workers could purchase the required clothing from Walmart directly. Although the practice of requiring low-wage workers to provide their own uniforms, tools, or equipment is not new or unique, the social impact of a company that profited over $4 billion dollars last quarter alone passing on costs to its workers, some of whose wages leave them eligible for public benefits, seems to have elicited the current widespread backlash. Read full summary of story: HERE http://knowledge.wharton.upenn.edu/article/wal-marts-dress-code-controversy/ Listen to Knowledge@Wharton Podcast 27 minutes: HERE http://media.blubrry.com/kw/p/d1c25a6gwz7q5e.cloudfront.net/audio/140918_KW_Radio_Weinstein.mp3 Noel Canning = 9-0 Against NLRB’s Intra-Session Appointments On June 26th, 2014 the Supreme Court handed down a unanimous ruling affirming that President Obama’s intra-session recess appointments of three members to the National Labor Relations Board were in fact unconstitutional. The ruling effectively invalidated the recess appointments made by President Obama in early 2012, which will require the National Labor Relations Board to re-hear those cases tried in front of the unconstitutionally appointed Board members, Griffin, Block and Flynn. The 9-0 ruling was a referendum on the scope of the president’s power to fill vacancies within Judicial and Executive branches during Senate (cont.) 1 Labor and Employment Relations Association (LERA) www.LERAweb.org recesses. The ruling sparked controversy regarding the Recess Appointment Clause of the Constitution, which details the power of the president to make vacancy appointments while the Senate is in recess. The power was originally vested in the Executive in order to maintain operational control of the government if and when the Senate was unavailable for consent. The issue underlying the controversy was who decides whether the Senate is in recess. The Supreme Court reaffirmed that the Senate remains in control of its recess-determining powers, and found that the threeday intra-session recess at bar was not in fact a valid recess under the Clause. The Supreme Court’s ruling unsatisfactorily identified valid recess qualifications, but it did elucidate the outer edges. The court opined that a Senate recess of less than ten days was presumptively insufficient to warrant a valid appointment. Critics of the ruling fear that many influential cases delivered in the interim could be reversed, leading to additional expense, time, and frustration. Supporters of the 9-0 decision see this as a clear message to labor advocates that the Constitution cannot be manipulated to serve the interests of stakeholder groups. The Board is currently readdressing hundreds of rulings delivered during the term of the contested appointments. Read more details on the decision: HERE http://www.americanbar.org/content/newsletter/groups/labor_law/ll_hottopics/2014/7-1-2014hot.html Implications from the cited article: Management Perspective: The Noel Canning decision calls into question every official action taken by the NLRB during the terms of its unconstitutionally appointed Members. This means all the NLRB's actions between January 4, 2012 and August 2, 2013--which includes issuing over 700 decisions and appointing several Regional Directors--are likely invalid. The NLRB now must revisit and reconsider all the invalid decisions that return to it….The likely invalidation, of the NLRB's Regional Director appointments, poses a thornier issue, as its consequences may extend beyond the need to merely revisit cases and reissue decisions. Employers may challenge as invalid a variety of decisions made and actions taken by those Regional Directors since their appointments, such as those related to determining the appropriate bargaining unit, ruling on election objections, and certifying election results in union representation cases. In conclusion, due to the time necessary for the NLRB to revisit the invalid decisions, Noel Canning will likely bog down the NLRB and inhibit its ability to proceed as planned on the other cases and issues currently before it.” “Union Perspective: The greatest effect of the Court's ruling on labor will be the decisions that were decided by former Members Block, Flynn, and Griffin where the unsuccessful party sought review on the basis that their appointments were invalid, but unions are optimistic that the NLRB--having experience with reconsideration after the Court's 2010 invalidation of the Agency's delegation of power to a twomember board in New Process Steel v. NLRB, 560 U.S. 674 (2010)--will handle those pending cases expeditiously and effectively to ensure the NLRA's purposes are effectuated.” 2 Labor and Employment Relations Association (LERA) www.LERAweb.org Workers Strike Against McDonald’s Nationwide On Thursday, September 4th, thousands of workers from fast-food restaurants nationwide expressed solidarity through protests, strikes, sit-ins, and acts of civil disobedience. Their ire was directed at McDonald’s and other fast-food chains in an attempt to increase the minimum wage for these low-wage workers, from a low of $7.25 per hour to $15 per hour. Hundreds of workers were arrested for blocking traffic and staging demonstrations in the streets. Critics of the protests have fired back accusing unions of paying the demonstrators up to $500 and encouraging acts of civil disobedience and arrests to drum up attention. A functional debate over traditional labor protections continues to elevate this dispute, as labor activists argue that McDonald’s should not be shielded from collective action behind its franchise model. However, fast-food chains assert that McDonald’s is truly a system of small franchise owners who barely get by on razor-thin margins making it difficult or nearly impossible to raise wages. The General Counsel of the National Labor Relations Board recently opined that McDonald’s could be sued as a “joint employer.” The public attention created by the demonstrators is sure to generate additional legal discussions about the franchise model of ownership, and the ability of workers to collectively bargain for higher wages with the umbrella organization itself. Read background: HERE http://thehill.com/business-a-lobbying/business-a-lobbying/216594-fast-food-workers-take-to-the-streets-for-15-minimum Read NYT article about the NLRB General Counsel’s decision: HERE http://www.nytimes.com/2014/07/30/business/nlrb-holds-mcdonalds-not-just-franchisees-liable-for-worker-treatment.html?_r=1 Read NLRB Press Release: HERE http://www.nlrb.gov/news-outreach/news-story/nlrb-office-general-counsel-authorizes-complaints-against-mcdonalds Missouri Legislature Feels More Teachers Need To Carry Lethal Weapons The Missouri legislature recently upstaged the Governor with a veto override, protecting the right of teachers to carry guns in the classroom. The legislation, SB 656, will allow more teachers statewide the opportunity to bring and wear lethal weapons on public-school campuses. Accompanying Missouri’s law is the option for schools to select which teachers and other employees are allowed to carry a gun or pepper spray on campus. Proponents argue that the 2nd Amendment should carry into the classroom, where years of mass shootings on campuses across the country have struck fear into communities nationwide. Recent reports indicate that more than twenty-four states allow adults with proper certifications to carry loaded weapons on school campuses; teachers are allowed to carry guns into public-school classrooms in seven of those states. A flurry of legislation followed the mass shooting at Sandy Hook, which inspired the introduction of over eighty similar bills in nearly thirty-five states across the country. Employee advocates argue that carrying a loaded weapon (cont.) 3 Labor and Employment Relations Association (LERA) www.LERAweb.org in a school classroom places teachers in perilous situations and outside the scope of their responsibilities, regardless of the safety training and certifications required. SB 656 sparked furious debate accompanied by backlash from teachers’ unions who argue vociferously against expanding the role of educators into the traditional arena of law enforcement. The legislation further complicates labor relations when traditional collective bargaining agreements rarely (if ever) address the parameters of carrying a loaded weapon on campus. Additionally, the attention highlights the need for updated employee handbooks and school policies to address carrying weapons on campus such as whether the employee or employer will bear the responsibility of liability insurance, how the weapons and ammunition will be purchased, and how students will react to seeing their teachers with a holster. Read background HERE. http://www.reuters.com/article/2014/09/11/us-usa-missouri-concealed-carry-idUSKBN0H62JO20140911 Read SB 656 HERE. http://legiscan.com/MO/text/SB656/2014 California Passes Legislation Mandating Paid-Sick Leave For Most Employees Governor Jerry Brown of California recently signed legislation that will require employers in his state to provide three paid sick leave days for their employees starting next summer. The law follows recent legislation that raises the state minimum wage to $10 per hour, and makes California the second state in the country, behind Connecticut, to provide mandated paid sick time. Proponents laud Brown’s efforts asserting that low-wage workers are unfairly affected when they get sick due to lack of workplace protections, and are often the sole breadwinners in the household. Providing paid sick days allows the workers to rest and recover more quickly; there is also an argument that sick workers should stay home instead of taking the risk of infecting those around them. Opponents argue that Brown’s move restricts business owners’ rights to schedule and compensate their employees as they see fit, and this is an undue burden restricting their ability to stay competitive in the market. The cacophony of argument has masked the factual undertones discernable beyond anecdotes. Research stemming from the Connecticut paid sick leave legislation shows that business costs associated with the mandate did not match dire predictions, and nearly eight in ten business owners experienced positive intangibles amongst the workers such as improved attitudes and personal bonds. The affected business sectors actually showed an increase in employment. An earlier study found less positive reactions by business, and opponents continue to push back arguing that government intrusion into private business increases cost and further bureaucratizes an overly regulated corporate environment. Many local and state lawmakers are taking note, and are looking for ways to implement or shield similar legislation. (cont.) 4 Labor and Employment Relations Association (LERA) www.LERAweb.org California Passes Legislation Mandating Paid-Sick Leave For Most Employees (cont.) Read the studies: HERE and HERE. http://www.cepr.net/index.php/publications/reports/good-for-business-connecticuts-paid-leave-law https://www.epionline.org/studies/2013_EPI_PaidSickLeaveInConnv4.pdf Read a report on existing laws and campaigns: HERE http://www.nationalpartnership.org/research-library/campaigns/psd/state-and-local-action-paid-sick-days.pdf Read the California bill: HERE. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1522 Working at Home as a Reasonable Accommodation Early cases under the Americans with Disabilities Act suggested that working at home would rarely be a reasonable accommodation for an individual with a disability. In recent cases, however, courts have begun to acknowledge that the development of technology has made working at home a more feasible accommodation for many jobs. Notable among recent cases is EEOC v. Ford Motor Co., In that case, the district court ruled for the employer without a trial, finding that a disabled resale steel buyer could not perform all of the duties of her job from home. A three judge panel of the Sixth Circuit Court of Appeals reversed, finding a dispute of fact requiring a trial. An important part of the job was group problem-solving, which Ford claimed could not be done effectively without face-to-face meetings. The court refused to accept the premise that jobs that require teamwork are “inherently unsuitable” for telecommuting stating: “advancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace.” 752 F.3d at 641. The court refused to simply defer to the business judgment of Ford that telecommuting was not feasible, given some evidence to the contrary, and noted that while attendance might be an essential job function, it should not be confused with physical presence. The full court has decided to reconsider the issue so the panel’s opinion is no longer the law. Watch for a decision from the full circuit, which covers Michigan, Ohio, Tennessee and Kentucky. Given changing technology, this is likely to be a recurring issue of importance to both employers and employees. Read a piece from the EEOC: HERE. http://www.eeoc.gov/eeoc/newsroom/release/4-23-14a.cfm Read an employer’s perspective: HERE. http://www.littler.com/publication-press/publication/sixth-circuit-opens-floodgates-telecommuting-reasonable-accommodation Read the decision: HERE. http://www.ca6.uscourts.gov/opinions.pdf/14a0082p-06.pdf 5 Labor and Employment Relations Association (LERA) www.LERAweb.org OSHA Changes Reporting Requirement OSHA just issued revisions to its recordkeeping rule that will be effective January 1, 2015. The new rules require employers to report to OSHA within eight (8) hours any workplace fatalities and to report any work-related in-patient hospitalizations, amputations, and losses of an eye within 24 hours. In addition OSHA has revised the exemptions from its recordkeeping requirements. Employers that had 10 or fewer employees during the entire previous calendar year are still exempt from routine recordkeeping of serious injuries and illness. The list of lowhazard industries exempt from OSHA’s routine recordkeeping requirements has been revised, however. These revised regulations apply to employers covered by federal OSHA. For states with their own plans, which are required to be as protective as federal law, those affected should check with their state plan to determine the effective date for implementation of the new regulations. Read more about these new regulations at OSHA’s web page HERE. https://www.osha.gov/recordkeeping2014/index.html 6 Editor: Co-editor: Ann Hodges University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173 Dillon Taylor J.D. Candidate, 2016 University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173 Labor and Employment Relations Association (LERA) www.LERAweb.org
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