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2008 Unions Win Highest Rate Ever
By Patrick J. Hoban*
According to National Labor Relations Board (“NLRB”) data, unions
won 66.8 percent of representation elections conducted by the NLRB in
2008. This figure represents the highest win rate since 1955 when unions
won 67.6 percent of the elections in which they participated. The 2008
union election win rate is a 6.4 percent increase over 2007 and
represents an 8.4 percent increase over 2004.
The number of voters eligible to participate in the elections
also increased from 102,494 in 2007 to 108,587 in 2008. In 2008, unions
organized 70,511 workers through NLRB elections, up from 58,260 in 2007.
Unions had the greater organizing success among both small and
large collective bargaining units. Unions won 69.3 percent of elections
in units of fewer than 50 employees, and 64 percent of elections in
units of more than 500.
The industries with the highest percentage of wins were finance,
insurance, and real estate (89.7 percent), followed by health care (74.3
percent). Other sectors where unions won at least 50 percent of the
elections in which they participated included services (72.9 percent),
transportation, communications, and utilities (70.8 percent),
construction (66.2 percent), and retail (54.7 percent). Unions won less
than 50 percent in wholesale (48.9 percent), communications (48
percent), mining (47.4 percent), and manufacturing (46.5 percent).
Representation elections by union affiliation also generally
increased. Unions affiliated with the AFL-CIO won 64.5 percent of
representation elections in 2008 compared with 59.5 percent in 2007.
Unions in the Change to Win federation won 61.3 percent of the elections
they participated in 2008. In 2007, the Change to Win federation won
52.4 percent of their representation elections. The International
Brotherhood of Teamsters (IBT) won 58.6 percent of the elections in
2008, up from 48.8 percent in 2007.
Notably, these NLRB statistics do not reflect the full extent of
organizing by labor unions. Many unions organize through check-card
recognition, neutrality agreements, and methods other than NLRB-run,
secret ballot elections. These statistics, as well as the possibility
that the Employee Free Choice Act may still become law, should encourage
all non-union employers to review and revise workplace policies related
to union organizing and monitor their workplaces for potential union
organizing efforts.
*Patrick J. Hoban
practices in all areas of labor and employment law, with a focus on
private and public sector labor law. For more information on NLRB
statistics or any other labor or employment issue, contact Pat at
216.696.4441 or pjh@zrlaw.com.
Discrimination Claims Rise To Highest Levels Ever
By Michele L. Jakubs*
Discrimination claims based on race, retaliation, sex, age,
disability and other reasons filed from fiscal year 2007 to 2008 with
the Equal Opportunity Commission (“EEOC”) rose 15% from 82, 792 claims
to 95,402 claims. This is the highest number of claims ever recorded in
the 40+ year history of the EEOC. So, why all the new discrimination
claims?
In short, discrimination claims tend to rise in tough
economic times because more people lose their jobs and may become
economically desperate. Tough economic times also can lead to poor
communication by employers with their employees in the workplace. When
employees are part of a layoff, termination, reduction in hours, or
other employment decision they may not know why their employer made such
a decision. If employees are left to guess as to why their employer
made a certain decision, they may be more inclined to file a
discrimination claim. Therefore, it is imperative that employers
communicate to their employees the reasons for the particular decision.
Employers should prepare for even more discrimination claims
in fiscal year 2009. According to one spokesman from the EEOC, job bias
claims may rise to more than 100,000 claims in fiscal year 2009.
Age discrimination and retaliation claims saw the biggest
rise in fiscal year 2008. Age discrimination claims rose 28.7% from
19,103 to 24,582 claims. Retaliation claims rose 22.6% from 26,663 to
32,690 claims.
These statistics emphasize that employers must maintain
vigilant in their approach in understanding complying with employment
laws.
COMPLAINTS FILED ANNUALLY WITH EEOC
|
| Category |
FY 2007 |
FY 2008 |
Percent Change |
| Total Charges |
82,792 |
95,402 |
15.2% |
| Race |
30,510 |
33,937 |
11.2% |
| Retaliation |
26,663 |
32,690 |
22.6% |
| Sex |
24,826 |
28,372 |
14.3% |
| Age |
19,103 |
24,582 |
28.7% |
| Disability |
17,734 |
19,453 |
9.7% |
| National Origin |
9,396 |
10,601 |
12.8% |
| Religion |
2,880 |
3,273 |
13.6% |
| Equal Pay Act |
818 |
954 |
16.6% |
| Source: Equal Employment Opportunity Commission (Complaints can be filed in multiple categories.) |
*Michele L. Jakubs, an
OSBA Certified Specialist in Labor and Employment Law, practices in all
areas of employment litigation and wage and hour compliance and
administration. For more information concerning discrimination or any
other labor or employment issue, please contact Michele at 216.696.4441
or mlj@zrlaw.com.
President Obama Signs Lilly Ledbetter Fair Pay Act Into Law
By Stephen S. Zashin*
Recently, President Barack Obama signed the Lilly Ledbetter
Fair Pay Act into law in front of a crowd of onlookers. The Act
overturns the U.S. Supreme Court’s decision in
Ledbetter v. Goodyear Tire & Rubber Co,
550 U.S. 618 (2007), which held that employees were required to file
pay discrimination lawsuits against their employers within 180 or 300
days of an employer’s initial discriminatory compensation decision.
Ledbetter alleged that she worked at Goodyear for 19 years
before discovering that Goodyear paid her significantly less than her
male counterparts with the same or less experience. She filed a charge
when she discovered the discriminatory pay decision of her employer.
Ledbetter argued that each check she received while employed constituted
a new act of discrimination, which reinitiated the 180-day statutory
filing period. The U.S. Supreme Court, in a 5-4 decision, found
Ledbetter’s argument unpersuasive.
The Court held that her complaint had to be filed within 180
days of the initial compensation decision by Goodyear to pay her less
than here male counterparts, even if she did not know of the decision
until 19 years later. The Court’s decision meant that the 180-day
statute of limitations for filing a charge of discrimination began on
the date the employer made the compensation decision, not on the date of
the most recent paycheck. This decision precluded lawsuits by
plaintiffs who alleged ongoing pay discrimination but did not discover
it until years later.
The Lilly Ledbetter Fair Pay Act overturns
Ledbetter
and amends Title VII of the Civil Rights Act of 1964 (“Title VII”), the
Age Discrimination in Employment Act (“ADEA”), the American with
Disabilities Act (“ADA”) and the Rehabilitation Act to clarify at which
point in time discriminatory actions qualify as an “unlawful employment
practice.” According to the Lilly Ledbetter Fair Pay Act, unlawful
conduct occurs when:
- an employer adopts a discriminatory compensation decision or other practice;
- an individual becomes subject to the decision or practice; or
- an individual is affected by application of the decision or practice, including each time compensation is paid. (Emphasis added).
Reason three, as indicated above, allows employees to file a
claim against their employers any time a payment is received which is
based on an employer’s discriminatory pay decision. Accordingly, the Act
means that every paycheck or arguably any other pay practice resulting,
in whole or in part, from an earlier discriminatory pay decision
constitutes a violation of Title VII, the ADEA, ADA or the
Rehabilitation Act. As long as an employee files a charge within 180
days of any discriminatory payment, their charge will be considered
timely. In addition, employees who are victims of discrimination may
receive up to two years of back pay.
Further, not only can paychecks represent new acts of discrimination, but the Act indicates that any type of
compensation which
is based on a discriminatory act constitutes an act of discrimination.
For example, pension payments and 401(k) distributions based on an
employee’s compensation may constitute separate acts of discrimination.
What Employers Should Do Now
Not surprisingly, the broadened statute of limitations for wage
disparity claims will prompt increased litigation. Employers wishing to
minimize the risks of liability should consider the following:
Audit Current Pay Documentation Practices:
Employers should audit their compensation practices to determine
whether sufficient documentation exists to support compensation
decisions. Employers will need performance-based specifics underlying
such decisions to defend wage disparity claims.
Develop Specific Criteria for Compensation Decisions:
Employers should develop objective, measurable guidelines for
compensation decisions and apply those guidelines consistently and
uniformly within job classifications, work, groups, departments or
business units.
Review Compensation Decisions:
Employers should create a process to ensure that managers and
supervisors do not have unfettered discretion when making compensation
decisions. Rather, employers should consider adopting a review system to
ensure rigorous scrutiny of compensation decisions similar to those
employers already use when considering terminations, discipline, or
other adverse actions.
Revise Document Retention Practices:
Employers should review their current document retention policies to
determine how long they maintain documentation regarding compensation
decisions. In the post-Ledbetter world, employers likely will need to
retain such information for as long as the employee receives any form of
payments from the employer or any of its benefit plans (
e.g., 401(k), etc.). Employers may need to consider electronic archiving given the voluminous nature of pay-related records.
Train Supervisors and Managers:
Employers should train all supervisors and managers regarding any
post-Ledbetter policy modifications to ensure that they understand those
policies and, most importantly, the need to support objectively all
compensation decisions.
Conduct Periodic Statistical Analysis of Compensation Data:
Employers should analyze compensation data to determine if any
statistical disparities exist across gender, race and ethnic lines. Once
identified, an employer can make appropriate adjustments to eliminate
any unexplained disparities.
*Stephen S. Zashin,
an OSBA Certified Specialist in Labor and Employment Law, has extensive
experience defending employers involved in individual, class and
collective employment litigation. For more information about the Fair
Pay Act or any other employment or labor issue, please contact Stephen
at 216.696.4441 or ssz@zrlaw.com.
U.S. Supreme Court Holds That Union Nonmembers Can Be Charged a Fee for National Litigation Expenses
By George S. Crisci*
In
Locke v. Karass, the U.S. Supreme Court held that
the First Amendment permits a local union to charge nonmembers for
national litigation expenses so long as (1) the subject matter of the
litigation bears an appropriate relation to collective bargaining and
(2) the charge is reciprocal in nature (
i.e., the local union’s
payment to the national affiliate is for “services that may ultimately
inure to the benefit of the members of the local union by virtue of
their membership in the parent organization.”)
The state of Maine requires government employees to pay a
service fee to the local union that acts as their exclusive bargaining
agent even if those employees disagree with, and do not belong to, the
union. The Maine State Employees Association (“the local”) is the
exclusive bargaining agent for certain executive branch employees. A
collective-bargaining agreement between Maine and the local requires
nonmember employees whom the union represents to pay the local a
“service fee.” The service fee includes a charge that represents the
affiliation fee the local pays to its national union, the Service
Employees International Union (“the national”).
The portion of the service fee at issue was the amount that
helps the national union pay for litigation activities, some of which do
not
directly benefit the local union but rather directly benefit other locals or the national organization itself. The petitioners,
i.e.,
nonmembers of the local, argued that the First Amendment prohibits
charging them for any portion of the service fee that represents
“national litigation,” that does not directly benefit the local.
The issue before the Court is whether the First Amendment
permits a local union to charge nonmembers a fee to help pay for
national litigation activities, some of which do not directly benefit
the local union but rather directly benefit other locals or the national
organization itself.
The U.S. Supreme Court reasoned that the same standard should
apply to national litigation expenses as to other national expenses. In
particular, the Court found no basis for holding that national social
activities, national convention activities, and activities involved in
producing the nonpolitical portions of national union publications all
are chargeable but litigation activities are not. The Court stated that a
local nonmember can benefit from national litigation aimed at helping
other locals if the national or those other locals will similarly
contribute to the cost of litigation on the local union’s behalf should
the need arise.
This case demonstrates that employers must understand the
subtle nuances in the law in their administration of collective
bargaining agreements.
*George S. Crisci, an
OSBA Certified Specialist in Labor and Employment Law. George represents
employers in all facets of labor and employment law, in both the public
and private sector. For more information concerning any labor or
employment issue, please contact George at 216.696.4441 or gsc@zrlaw.com.
Court Holds: Ohio Law Retaliation Based Claims Broader In Scope Than Under Federal Law
By Lois A. Gruhin
An Ohio Court of Appeals recently held in
Hughes v. Miller
that Ohio law is broader in scope than Title VII in terms of who has
the obligation to refrain from retaliation. In particular, the court
determined that no “person” may retaliate under Ohio law, while an
“employer” must refrain from retaliation under 42 U.S.C. 2000e-3(a). The
court held that a retaliation claim asserted by an employee against a
co-employee is perfectly actionable under Ohio law, even though it is
not under Title VII.
In
Hughes, the plaintiff and defendant both worked as
Cuyahoga Community College (“Tri-C”) police officers. The female
defendant initially filed an internal complaint with Tri-C alleging that
the male plaintiff committed various acts of sexual harassment against
her. Tri-C conducted an internal investigation and disciplined the
plaintiff. The plaintiff subsequently filed a lawsuit against defendant
accusing her of defamation. The defendant filed a counterclaim against
the plaintiff and alleged that plaintiff filed his complaint against her
in retaliation for her filing the internal complaint.
The trial court dismissed the defendant’s counterclaim under
Rule 12(B)(6) for failing to state a claim. On appeal, the issue became
whether the defendant’s counterclaim sufficiently set forth a claim for
retaliation for participation in a “protected activity” in violation of
R.C. 4112.02(I). The defendant argued that her act of filing an internal
complaint against Hughes was a “protected activity.”
Under Ohio law, the court held that an employee may file a
claim against a co-employee for retaliation if: (1) the claimant engaged
in protected activity; (2) claimant’s engagement in the protected
activity was known to the opposing party; (3) the opposing party
thereafter took adverse action against the claimant; and (4) there
exists a causal connection between the protected activity and the
adverse action. The court determined that the defendant sufficiently met
the last three elements of the prima facie case. The court then looked
for guidance from the United States Supreme Court (“USSC”) and Ohio
Supreme Court in determining if the defendant’s claim was a “protected
activity” under element one.
Ohio’s Supreme Court cited
Crawford v. Metro. Govt. of Nashville and Davidson Cty., Tennessee,
in which the USSC court held that an employee’s filing of an internal
complaint with an employer constitutes “protected activity” under the
opposition clause of Title VII’s anti-retaliation provision, protecting
employees who disclose sexual harassment in such a manner from
retaliatory conduct by the employer. In particular, the
Crawford
Court held that protection under the “opposition clause” of
anti-retaliation statutes is not limited to cases where an employee
initiates an internal complaint protesting sexual harassment. The
Crawford
Court found that the “opposition clause” extends protection to an
employee who opposes sexual discrimination stemming from sexual
harassment, not by initiating a complaint, but by answering questions
posed to him or her during an employer’s internal investigation.
The court also cited Ohio Supreme Court case precedent, including
Ohio Civ. Right Comm. v. Akron Metro. Hous. Auth.,
which held that Ohio law proscribes certain unlawful discriminatory
practices by employers who fail to take corrective action in response to
an employee’s opposition to a co-employee’s sexual harassment. The
court also cited
Ohio Civ. Rights Comm. v. Lysyj which held that
R.C. 4112.02(G) and 4112.01(I) are remedial statutes, which are to be
construed “liberally in order to effectuate the legislative purpose and
fundamental policy implicit in their enactment, and to assure that the
rights granted by the statutes are not defeated by overly restrictive
interpretation.” The court finally held that the defendant’s
counterclaim against the plaintiff was a “protected activity” under Ohio
law, even though it would have been dismissed under federal law.
The decision in
Hughes v. Miller highlights the subtle
but profound distinction between Ohio and federal law retaliation based
claims. Employers must understand that retaliation based claims under
Ohio law are broader and more liberally construed than those under
federal law.
Z&R SHORTS
George Crisci and
Rick Hanrahan
will present on developments in SERB decisions and COBRA respectively
at the Cleveland Metropolitan Bar Association’s 9th Annual Labor and
Employment Law Conference on June 25 and 26. Please contact CMBA at
(216) 696-2404 for details and to attend.
Summer Is Near
Summer is quickly approaching and the weather is improving by the
day making it the ideal time for employers to review their dress code
and attendance policies with employees. Employers hiring seasonal help
for the summer (
e.g., students) also need to consider the
impact the Fair Labor Standards Act has on such hiring including
potential seasonal and recreational exemptions and the youth minimum
wage.
