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In a recent victory for non-union employers, the National Labor Relations Board held in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007), that a new standard will apply when determining backpay for union organizers known as "salts." The practice of "salting" involves union organizers applying for jobs with a non-union employer with the goal of organizing the workforce and drawing the employer into unfair labor practice litigation.
In 1995, the United States Supreme Court ruled in National Labor Relations Board v. Town & Country Electric, Inc., that salts are "employees" under the National Labor Relations Act, even if they are simultaneously paid by a union. Therefore, failing to hire or terminating a salt because of union activities violates the National Labor Relations Act. The typical remedy in such a case includes backpay.
Before the Oil Capitol Sheet Metal decision, the remedy for unlawfully terminating or refusing to hire a salt required the employer to pay backpay to the salt for the period starting with the unlawful act (refusal to hire or termination) and continuing until the employer made a valid offer of reinstatement, or instatement in the case of an unlawful refusal to hire. The Board applied a presumption that, if hired, the salt would have stayed on the job for an indefinite period. If the job was a construction job, the Board applied a further presumption that the employer would have transferred the employee to other jobsites when the job from which the salt was discharged or for which the salt should have been hired came to an end.
Often in such cases, there was no offer of reinstatement and it could take years before the Board got to the point at which it determined backpay. This meant the backpay period could extend for years and, thus, total potential backpay could add up to a substantial amount.
In Oil Capitol Sheet Metal, Inc., the NLRB decided that the presumptions discussed above should not apply to cases involving salts.
- "Unlike other applicants for employment, however, salts often do not seek employment for an indefinite duration; rather experience demonstrates that many salts remain or intend to remain with the targeted employer only until the union's defined objectives are achieved or abandoned. For this reason, much of the uncertainty as to the duration of the backpay period is attributable to the union and salt/discriminate rather than to the wrongdoing respondent employer, and they are in the best position to prove the reasonableness of the claimed backpay period by presenting, through the General Counsel, evidence readily available to them."
By eliminating presumptions that often unreasonably extended the backpay period for salts, this decision should decrease the amount of backpay at stake in many salting cases, making salting a less effective tool.
For more information about this decision and other employment law issues, contact educational services at (414)423-1330.
"Family Responsibility" Discrimination - The New Protected Class
Daniel J. Finerty, Esq.
djf@kclegal.com
There has been an increasing number of "family responsibility discrimination" lawsuits. These lawsuits have alleged violations of Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and other federal, state, and local mandates based on discrimination against caregivers, constituting unlawful disparate treatment.
Here are a few examples:
- A sales manager won a $1 million plus verdict because her supervisor admitted that, while she was qualified for promotion, he did not promote her because she had children and he assumed she would not want to relocate her family. Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) (reduced on appeal);
- An Ohio jury ordered a retail employer to pay $2,094,007 in damages for pregnancy discrimination to a female manager who was not promoted despite consistent assurances she was among the region's top managers. Trial testimony revealed that several less qualified males, females without children and females who assured management they were done having children were promoted instead. Teresa Lehman vs. Kohl's Department Store et al., Case No. CV-06-581501 (Cuyahoga County, Ohio);
- A school psychologist was denied tenure after having a child, despite outstanding performance reviews, based on the employer's stereotypical assumptions about her ability and commitment to return to work after having a child, which was highlighted by comments from managers that it was not possible to be a good mother and have her job. Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 (2nd Cir. 2004).
Recognizing this trend, the Equal Employment Opportunity Commission issued an enforcement guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities on May 23, 2007. The EEOC issued the guidance because of the changing workplace demographics, including women's increased participation in the labor force which has created a potential for greater discrimination against working parents and others with caregiving responsibilities. The new guidance is intended to assist employers in determining whether discrimination against persons with caregiving responsibilities constitutes unlawful disparate treatment under federal EEO law.
Because family responsibility discrimination is not its own protected category, any alleged employer conduct must be tied to a violation of a particular federal, state or local statute. For example, an employee who is demoted because he is not "giving 110%" may not have any claim against his employer; however, when the employee's responsibility to care for his brother with a known disability comes into play, the employee may have a claim under the Americans with Disabilities Act against the employer. An employer that takes away an employee's "work from home" or flex-time arrangement may not be violating any law; however, if that employee recently gave birth to a child or has taken Family and Medical Leave, changing the employee's flexible schedule may constitute a violation of the Pregnancy Discrimination Act or the Family and Medical Leave Act.
Prudent employers should take reasonable steps to deal with the growing risks in this area. First, employers should consider modifying their existing anti-discrimination policies to cover "family responsibility" discrimination and encourage employees to bring potential problems to their employer. Second, employers should ensure that front-line supervisors and managers are trained on preventing potential family responsibility claims when making hiring, promotion and termination decisions. Third, employers should take care to avoid retaliation claims by not treating an employee differently after the employee requests time off to care for a spouse, child, or elderly or disabled parent.
For more information about family responsibility discrimination and other employment law issues, contact educational services at (414)423-1330.
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