The Supreme Court Recognizes a Fundamental Right to Same-Sex Marriage

By Patrick J. Hoban*

In Obergefell v. Hodges, Case No. 14-556 (June 26, 2015), a five-justice majority of the Supreme Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment to the U.S. Constitution guarantee same-sex couples the fundamental right to marry under state law. The decision overturned last summer’s Sixth Circuit Court of Appeals decision which consolidated four actions and upheld state-law prohibitions on same-sex marriage in Michigan, Kentucky, Tennessee, and Ohio.

The Supreme Court based its decision upon the following analysis of law and tradition:

• Same-sex couples’ desire to participate in state-sanctioned marriage strengthens the societal institution;
• The historical concept of marriage has transformed with time;
• Marriage is a personal choice that is “central to the individual dignity and autonomy” and includes “intimate choices defining personal identity and beliefs” which the Constitution protects;
• “Two-person unions” and the “intimate association” they represent are a fundamental right;
• Same-sex marriage safeguards children and families by preventing the stigma and “humiliation” of the states’ refusal to recognize the individual choices upon which they are based;
• Marriage is a “keystone” of the Nation’s social order and, as a result, laws prohibiting same-sex marriages deny same-sex couples the “constellation of benefits” linked to marriage;
• Laws that prohibit same-sex marriage are unequal and deny same-sex couples from exercising a fundamental right;
• The right to marry is “a fundamental right inherent in the liberty of the person” and under the Due Process and Equal Protection clauses of the Fourteenth Amendment; and,
• Same-sex couples need not wait for legislative action before asserting a fundamental right.

The Court emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” and that the First Amendment gives “religious organizations and persons” proper protection to “teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”

Each of the four dissenting justices filed separate opinions which criticized the majority for “legislating” and not adjudicating, “revising” the Constitution, “exault[ing] judges at the expense of the People,” and “usurp[ing] the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”

For employers, the key significance of the Court’s decision is the effect it will have on spousal benefits and administration of employee payroll taxes. Many employers, whether self-insured or fully-insured, already have extended health and other insurance benefits to same-sex spouses of their employees in recent years. However, employers who have not done so based on state-laws prohibiting the recognition of same-sex marriages must discuss changing health and other employment-based insurance benefits contracts to extend coverage to same-sex spouses. Additionally, employers must review their human resources practices to ensure that employees in same-sex marriages receive the same leave and other employment benefits as opposite-sex married employees and seek legal counsel as needed.

The Obergefell decision recognizes that some individuals with religious beliefs that reject same-sex marriage continue to enjoy the protection of the First Amendment with regard to “advocating” those beliefs. Of course, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” At this time it is unclear whether the federal courts will recognize a “conscience objection” to the Obergefell decision under the Free Exercise clause of the First Amendment. Employers who may consider a policy or practice at odds with Friday’s decision must carefully consider the potential risks and seek legal counsel concerning such policies or practices.

*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. Pat regularly counsels employers on LGBT issues. For more information about the Obergefell decision, labor & employment law, or any other workplace related issues, please contact Pat | pjh@zrlaw.com | 216.696.4441.

The Supreme Court Legislates New Life into the Affordable Care Act

By Patrick J. Hoban*

The Affordable Care Act (ACA) has created enormous administrative, operational, and financial challenges for public and private sector employers large and small. Since its enactment on March 23, 2010, the ACA has generated enormous controversy and questions about its legality. Yet, the ACA has survived and its mandates and regulations – including the Employer Mandate fines and reporting requirements – have required employers to expend time and resources to adapt, adjust, and prepare.

On June 25, 2015, the latest installment of the ACA saga came to a crescendo when the U.S. Supreme Court issued its long-awaited decision in King v. Burwell, Case No. 14-114 (Jun. 25, 2015). The sole issue before the Court was whether individuals who obtain health insurance coverage through a health insurance exchange “established by” the Federal Government and not by a “State” were eligible for ACA tax credits. Through an exercise of legal flexibility that delighted the ACA’s proponents and dazed its detractors, the Court upheld an Internal Revenue Service (IRS) regulation and interpreted the ACA to extend tax credits to individuals who obtain health insurance coverage through State or federally-established health insurance exchanges. If the Court had decided differently, the decision would have released employers in States that had not established Exchanges (35 of the 50 States – including Ohio) from the burdens of the Employer Mandate.

This is how we got here:

Background: Among its many, far reaching, and onerous provisions, the ACA requires that health insurance providers issue coverage to any applicant regardless of existing medical conditions. The ACA also requires insurers to adopt “community rating” for health insurance premiums which significantly restrict an insurer’s ability to set premiums based upon traditional actuarial factors. To guarantee that a sufficient number of relatively healthy individuals obtain coverage (and offset the costs of guaranteed issue and premium rate restrictions), the ACA further requires most individuals to purchase qualifying coverage or pay an annual “tax” (the Individual Mandate). With the goal of fostering a competitive marketplace for compliance with the Individual Mandate, the ACA introduced health insurance Exchanges – in short, online shopping forums for health insurance. The ACA provides that States may “establish” Exchanges for their citizens or, if a State elects not to, the Federal Government will establish “such Exchange” and operate it in the State.

To offset expected increases in health insurance premium costs generated by guaranteed issue, minimum essential coverage standards and rating limitations, the ACA created refundable, advanceble tax credits for individuals who earn between 100 and 400% of the Federal Poverty Line. To be eligible for an ACA tax credit, an individual must fall within the required income range, obtain coverage through an “Exchange established by the State,” and not have been offered group coverage by his employer.

In the years following the ACA’s enactment, 16 States and the District of Columbia established Exchanges at great cost to those States, and, through federal grants, the U.S. Treasury. The remaining 34 States (including Ohio) chose not to and the Federal Government established Exchanges to operate in those States. In 2013, the IRS issued a regulation interpreting the ACA to provide that tax credits were available to an individual who obtained coverage through an Exchange “established by the State” or established by the Federal Government. Accordingly, in 2014, the first year that tax credits were available, the IRS granted tax credits to qualifying individuals regardless of whether they obtained coverage through a “State established” or a federally established Exchange. The regulation was challenged in two separate actions on grounds that the ACA’s language clearly stated that only individuals who obtained coverage through an “exchange established by a State” were eligible for tax credits. In Halbig v. Burwell, 14-5018 (D.C. Cir. Jul. 22, 2014), the D.C. Circuit struck down the IRS regulation. On the same day, in King v. Burwell, 14-1158 (4th Cir. Jul. 22, 2014), the Fourth Circuit upheld the IRS regulation.

While the Obama Administration appealed the Halbig decision to the full D.C. Circuit for en banc review, the Plaintiffs in King appealed to the Supreme Court which accepted the case based on the split between the circuit courts. Notwithstanding the ACA’s myriad provisions affecting insurers, health insurance providers and individuals, employers – especially “Applicable Large Employers” (i.e., employers with 50 or more full-time employees or full-time equivalents) – had a dog in the fight.

Under the ACA’s Employer Mandate, Applicable Large Employers face fines of from $2,000 to $3,000 per year per full-time employee if they do not offer group health insurance coverage to full-time employees and their dependents that provides “minimum essential coverage” as established by the ACA, provides “minimum value” (pays for at least 60% of benefits costs), and is affordable (employee premium payments are less than 9.5% of their monthly compensation). Additionally, Applicable Large Employers are required to file multiple forms with the IRS (and provide copies to each employee) annually to verify employee access to coverage, employee premium payments, minimum value, and affordability. However, all of the Employer Mandate requirements were conditioned on a full-time employee’s eligibility for a tax credit for coverage obtained through an Exchange. In short, if an employee obtained coverage through a federally established Exchange and was not eligible for a tax credit, his employer would not be liable for Employer Mandate fines or reporting requirements (e.g., Ohio employers). A decision striking down the IRS tax credit regulation would have essentially nullified the Employer Mandate in Ohio and other States that did not establish Exchanges.

The Decision: In an opinion written by Chief Justice Roberts, the six-member Court majority first concluded that the phrase “established by a State” was ambiguous. It then determined that, because the issue of whether tax credits were available to individuals enrolled through federally-established exchanges was “key” to the operation of the ACA, Congress could not have intended to delegate authority to make that decision to the IRS. Then, based on analysis of the context of the ACA’s tax credit provisions, the Court held that the ACA’s overall purpose meant that tax credits had to be available under exchanges established by the Federal Government and not only those “established by the State.” The Court summarized its decision:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The ACA] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

The majority also recognized that the procedure by which the ACA’s 900 pages were enacted resulted in “inartful drafting” because the Obama Administration and then Democrat Congressional majority “wrote key parts of the Act behind closed doors,” used a complicated budgetary process “which limited opportunities for debate and amendment,” and “bypassed the normal 60-vote filibuster requirement.” This process, the majority concluded, “does not reflect the type of care and deliberation that one might expect of such significant legislation.”

The Dissent: The dissenting opinion, written by Justice Scalia, rejected the majority’s conclusion that the phrase “exchange established by the State” was ambiguous. In short, the dissent contended that congressional intent is most clearly expressed through the plain language of the statute, and the plain language states that tax credits are not authorized for coverage through exchanges established by the Federal Government: “Words no longer have meaning if an Exchange that is not established by the State is ‘established by the State.’” Characterizing the majority’s interpretation as “jiggery-pokery,” the dissent accuses the majority of concocting ambiguity to “rewriting” the ACA based on its determination to correct the ACA’s structural flaws based on an understanding of its purpose that is contrary to its terms.

The dissent further objected to the majority’s reliance on the importance of tax credits to the overall structure of the ACA stating that, if denying tax credits to coverage through federally-established exchanges it would “only show that the statutory scheme contains a flaw, [and] would not show that the statute means the opposite of what it says.” Rejecting the majority’s “inartful drafting” rationale, the dissent asserted that “This Court . . . has no free-floating power ‘to rescue Congress from its drafting errors.” To this point, the dissent further stated:

This Court holds only the judicial power – the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “our task is to apply the text, not to improve upon it.”

****

Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitations of tax credits to state Exchanges.

What Do Employers Do Now: The King decision ends the most serious challenge to the ACA’s continued existence. Had the majority’s decision prohibited tax credits for coverage through federally-established exchanges, the ACA could not have survived without congressional action (unlikely) or the establishment of State exchanges by most of the 34 States that opted out. There are other, ongoing legal challenges to the ACA’s more limited provisions, and other potential challenges looming once the Employer Mandate takes full effect in January 2016. However, for now, employers must continue to identify their risks and obligations under the ACA by evaluating each employee’s “full-time” status under the ACA, determining whether to offer group coverage to “full-time” employees, confirm the “affordability” and “minimum value” of coverage offered, and comply with the bevy of reporting requirements arising under the ACA.

The Court has ruled and, while the political process may bring changes to the ACA in the next two years, the ACA is the law of the land.

Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. Pat regularly counsels employers on compliance with the ACA and has done so since 2010. Pat also frequently speaks on ACA issues. For more information about the ACA, labor & employment law, or any other workplace related issues, please contact Pat | pjh@zrlaw.com | 216.696.4441.

BNA's Health Law Reporter™ | Challenge to NLRB Election Rule Fails; Employers Urged to Prepare New Game Plan

June 11, 2015 | Lawrence E. Dubé and Peyton M. Sturges | Download PDF
Reproduced with permission from BNA's Health Law Reporter, 24 HLR 735 (June 11, 2015).
Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033)

In a decision with significant implications for healthcare employers, a federal trial court June 1 found NLRB amendments to its representation case rules are neither unlawful nor arbitrary (Associated Builders & Contractors of Tex., Inc. v. NLRB, 2015 BL 174029, W.D. Tex., No. 1:15-cv-26, 6/1/15).

The U.S. District Court for the Western District of Texas rejected a challenge by a coalition of Texas business groups to the National Labor Relations Board's rules, dubbed by employers as ''quickie'' or ''ambush'' election rules, saying there was no evidence backing claims that the NLRB adopted the rule changes to favor organized labor. The plaintiffs also failed to demonstrate that they were entitled to an injunction blocking enforcement of the rule changes, the court said.

Health-care labor attorneys have followed the case, and a second pending in the U.S. District Court for the District of Columbia, closely because they have broad implications for hospitals and other health-care provider employers. The attorneys have warned that the rules make providers more vulnerable to union organizing efforts because they significantly expedite the holding of elections following the filing of a petition and tie an employer's hands in a number of respects that limit its ability to respond to a union organizing effort (24 HLR 506, 4/23/15).

Although the plaintiffs immediately filed an appeal with the U.S. Court of Appeals for the Fifth Circuit June 5 (No. 15-50497), attorneys told Bloomberg BNA that health-care providers and other employers shouldn't assume that the rules will eventually be struck down. Instead, employers should prepare now for the very real possibility that these rules are here to stay, they said.

High Stakes in Health Care.

Patrick J. Hoban, with Zashin & Rich, Cleveland, said the stakes for healthcare and other employers are high because the rules "significantly reduce the time employers will have to mount their own campaign and counter the misinformation that the union will have been feeding the employees for months prior to filing the petition." Combined with the added administrative and procedural burdens placed on employers in the first week after a petition is filed, "it will be a whole new ball game," he told Bloomberg BNA.

In addition to implementing a union avoidance strategy including regular employee training, Hoban advised employers to review and update their employee handbooks, particularly provisions regarding solicitation, distribution, posting, conduct and electronic mail use to comply with NLRB standards.

"In short, employers who would avoid unionization should essentially run a continuous union-avoidance program," he said.

Hoban also pointed to data recently released by the NLRB that document what many had feared: that implementation of the rule will lead to more petitions and a significant reduction in the number of days between the filing of a petition and an election.

His firm's review of the data shows:

• from April 14 to May 14, 2015, the NLRB received 280 election petition filings;
• this number is up from 212 representation petitions filed from March 13 to April 13, 2015 before the rule took effect;
• the monthly average of representation petition filings for 2012 and 2013 were 164 and 165 respectively;
• for representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed;
• in 2012 and 2013, elections were typically held 38 days after a petition was filed.

"For health-care organizations, pre-planning work can be staggering but it is critical to simply being able to play the game." —GREG ROBERTSON, HUNTON & WILLIAMS LLP, RICHMOND, VA.

The NLRA guarantees employers the right to oppose unionization and explain to their employees why unionization isn't in their best interests. But even though the trial court's Associated Builders & Contractors ruling found the rules weren't pro-union, "the data suggests otherwise," Hoban said.

Greg Robertson, with Hunton & Williams LLP, Richmond, Va., agreed that the decision, though not the final word, suggests health-care and other employers need to prepare for the new election rule's requirements and pace.

"While the ruling is a blow to the employer community's opposition to the new rules, it is not the end of the road," he said. He pointed to the plaintiff's filing of an appeal and the case pending in the federal court in Washington.

The court in the latter case, however, already denied a request for a temporary restraining order and expressed skepticism concerning the plaintiffs' claims at a May 15 hearing (24 HLR 654, 5/21/15).

"Ultimately, employers cannot count on the success of the legal challenges to the board's election rules in federal court," Robertson said. "Employers should remain proactive and prepared to run an effective campaign within a time frame that will likely become more constricted in the next few months," he added.

Robertson told Bloomberg BNA that the increased pace creates a real urgency from an employer standpoint and that a two week election process can be logistically challenging for employers who aren't adequately prepared. "For health-care organizations, pre-planning work can be staggering but it is critical to simply being able to play the game."

Even simple things can become a nightmare for health-care providers facing a short election cycle, Robertson said. He cited the employer's need to organize meetings with employees of one or more bargaining units in order to provide them with the employer's perspective but said it can be difficult if not impossible to assemble prospective bargaining unit members for such a meeting given patient care imperatives.

"Whether it is meetings with registered nurses, housekeeping, dieticians or some other prospective unit, health-care employers need to figure out in advance how they will organize these meetings without disrupting patient care," he said.

Election Rule Changes Now in Place.

In dismissing the case, the court rejected arguments of the Associated Builders and Contractors of Texas Inc. and other groups that claimed the board exceeded its power under the National Labor Relations Act by adopting rule changes that may limit parties from litigating some representation case issues until well after employees cast ballots on union representation.

"The New Rule grants significant deference to the Board and the Regional Directors in applying the very provisions Plaintiffs challenge," the court said. That fact made it very difficult for the groups to argue that the court should consider the NLRB rule changes invalid on the face of the regulation, the court added.

The board approved the rule changes (RIN 3142- AA08) in December 2014. The Senate and House disapproved the NLRB regulatory action (S.J. Res. 8), but President Barack Obama vetoed their Congressional Review Act resolution March 31, allowing the rule changes to go into effect April 14.

The rule changes require employers to respond to the filing with a statement of position before a pre-election hearing is opened by an NLRB regional office.

Under the amended rules, pre-election hearings are generally to be devoted only to issues necessary to determine whether an election should be conducted. Other issues, including the unit inclusion or eligibility of employees may be deferred to post-election proceedings if they affect a small percentage of a voting unit.

Lawsuit Challenged NLRB Rulemaking.

The Associated Builders filed the lawsuit Jan. 13, shortly after the U.S. Chamber of Commerce and allied groups filed their challenge in the U.S. District Court for the District of Columbia (Chamber of Commerce v. NLRB, D.D.C., No. 15-cv-9).

The Texas plaintiffs filed a motion for expedited summary judgment in their case, while the NLRB filed its own partial motion to dismiss and a motion for summary judgment. The court granted the NLRB motions and denied the business coalition's request for summary judgment.

The Texas groups argued that the rule improperly restricts employers' ability to litigate threshold issues before a union election, citing new requirements for preelection hearings and said the new rule is inconsistent with Section 9(c)(1) of the act, which provides for "an appropriate hearing upon due notice" before an election is held.

The court, however, found language in the new rule that grants great deference to the board and its regional directors in conducting pre-election hearings "significant."

Because the business groups were challenging the NLRB rule on its face, the court said, "even if the New Rule ordinarily limits the timing and scope of the preelection process, the deference granted a Regional Director to extend and expand those limits renders Plaintiffs' challenge unavailing."

The court said the plaintiffs had "not pointed to any binding authority which establishes the language of 29 U.S.C. § 159 prevents the Board from requiring the filing of a Statement of Position prior to a pre-election hearing, requires the Board to permit employers to introduce evidence concerning voter eligibility in a preelection hearing, or prevents the Board from delaying consideration of voter eligibility prior to an election."

Employee Privacy Argument Rejected.

The court also rejected the coalition's challenge to a new rule provision requiring an employer to release information, including the personal phone numbers and e-mail addresses, of employees in connection with an election proceeding.

The challengers said information could be misused by unions, but the court said the plaintiffs hadn't explained how employee privacy would be compromised under the new rule.

The court also wasn't persuaded by an argument that the rule change would result in accelerating elections and truncating the time for debate and discussion before a representation election.

The new rule gives regional directors responsibility for setting election dates and instructs them to consider "the desires of the parties, which may include their opportunity for meaningful speech about the election."

"[O]nce again," the court wrote, "in light of the fact that Plaintiffs raise a facial challenge to the New Rule, this discretion alone renders it virtually impossible for Plaintiffs to show the election period in every set of circumstances violates free speech."

The court further said the challengers failed to show that the NLRB rule changes were arbitrary or improper under the Administrative Procedure Act.

Judge Robert L. Pitman wrote the opinion.

Littler Mendelson PC represented the business groups. NLRB attorneys represented the board.

Change is in the Air: Big Switch to Prospective Workers’ Compensation Billing Draws Near

By Scott Coghlan*

Private employers in Ohio will soon see a major change in the payment system from the Ohio Bureau of Workers’ Compensation (the “BWC”). Starting on July 1, 2015, the BWC will begin prospective billing for private employers. With the change to prospective billing, which has been in the works for over a year, the BWC will not offer coverage until an employer has paid its premium.

The BWC will cover the estimated $1.2 billion transition cost, so employers will not have “double” payments for retrospective and prospective costs at once. The BWC will mail payroll invoices on August 1, 2015, and the first installment payments will be due on August 31, 2015. Initially, employers will be placed on a bi-monthly payment plan with the opportunity to select a different payment plan. Employers may choose from a number of installment-payment options, including monthly, bi-monthly, quarterly, bi-annually, and annual installment payments; however, minimum premium payors must pay in one lump-sum installment.

Following the transition to the new billing system, the BWC will provide employers with an invoice for their 12-month premiums in June for the policy year’s start on July 1. Employers will choose their payment plan on May 15, and will be locked into the payment plan for the entire policy year. If an employer fails to pay an installment, its coverage will lapse. Overall, the BWC believes the switch will save employers 2.4% on premiums, and it expects premium costs to drop further if the current trend of decreasing rates continues.

The BWC is holding prospective billing seminars for employers across Ohio. For more information, you may contact the BWC by phone at 216.584.0159 or by email at Linda.V.1@bwc.state.oh.us. The BWC is also providing prospective billing “webinars” for employers through its website. More information on the seminars, webinars, and the implementation of prospective billing is available on the BWC’s website, at bwc.ohio.gov.

*Scott Coghlan, the head of the firm’s workers’ compensation department, practices in all areas of workers’ compensation and workplace safety law. For more information about the BWC’s new prospective billing and workers’ compensation issues in general, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441

The Jenner Effect: OSHA Releases New Best Practices on Restroom Access for Transgender Employees

By Scott Coghlan*

The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a new best practices guide on June 1, 2015, concerning transgender workers’ use of workplace restrooms.

OSHA’s sanitation standard already requires that all covered employers provide employees with sanitary and available toilet facilities. Generally, OSHA prohibits employers from placing unreasonable restrictions on restroom use, such as restroom facilities that are an unreasonable distance from an employee’s worksite. While many employers provide separate restrooms for men and women, OSHA does not require it. With increasing frequency, employers that provide separate restrooms are facing the issue of which restroom transgender employees should use.

Transgender individuals are those who do not identify with the gender they were assigned at birth – for example, a transgender woman may have male listed as the gender on her birth certificate and have been raised as a boy, but internally identifies as a woman. Transgender individuals may “transition” to live life as the gender they identify with in a number of different ways, including through changes to appearance, name changes, medical procedures, and changes to official identification documents.

OSHA published its new best practices guide, titled “A Guide to Restroom Access for Transgender Workers,” at the request of the National Center for Transgender Equality. With the new guidelines, OSHA seeks to ensure that transgender individuals feel safe and comfortable when using workplace restrooms. OSHA suggests that employers allow employees to use the restroom for the gender with which they identify. Thus, a transgender man should be permitted to use the men’s restroom. OSHA also offered alternative suggestions, including providing a single-occupancy, gender-neutral restroom or multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls. Additionally, OSHA cautions against segregating or singling out transgender employees by requiring those employees to use restrooms that do not conform with their gender identity or by requiring transgender employees to use only specific or gender-neutral restrooms when gender-specific restrooms are available. Finally, OSHA’s new guidelines state that employees should not be required to present medical or legal documentation of their gender identity in order to have access to restroom facilities for the gender with which they identify.

OSHA’s guidelines do not place any legal requirements on employers to follow them. However, employers should keep in mind that the Equal Employment Opportunity Commission (the “EEOC”) and other agencies have interpreted Title VII’s prohibition of gender discrimination to extend to discrimination based on gender identity and transgender status. Recently, the EEOC ruled that prohibiting a transgender person from accessing restrooms for his or her gender identity constituted direct evidence of discrimination, even though the transgender person had not undergone any medical procedure to “transition.” Additionally, several states already have laws in place concerning transgender individuals’ rights to access restrooms corresponding to their gender identity.

*Scott Coghlan practices in all areas of workplace safety law. For more information about OSHA’s new best practices guide and OSHA in general, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441

Unions Take Advantage of the NLRB’s “Quickie” Election Rules

By Sarah K. Ott*

The National Labor Relations Board (the “NLRB”) recently released data revealing a significant increase in union-filed representation petitions since the NLRB implemented its new “ambush” election rules on April 14, 2015 (“New Rules”). The New Rules completely changed the decades-old representation election process, saddled employers with added administrative obligations, and significantly limited an employer’s ability to argue bargaining unit issues prior to a representation election. The New Rules also significantly shortened the time after a petition is filed that an election may be held. Under the New Rules, an election may be held as soon as thirteen days after a union files a petition. Zashin & Rich described the anticipated changes in the New Rules in a recent Employment Law Quarterly Article titled “NLRB Pulls a Fast One: Final “Quickie” Election Rules for Union Elections Adopted” (Winter 2015 Employment Law Quarterly, Vol. XVII, Issue i). This “quickie election” process is expected to allow employers little time to mount an effective campaign to educate employees about the downsides of unionization. The NLRB’s new data suggests that unions are taking advantage of the benefits of the New Rules to employers’ detriment.

From March 13 to April 13, 2015 (the month prior to the New Rules’ effective date), unions filed 212 representation petitions. During the month immediately following the New Rules’ implementation, from April 14 to May 14, 2014, the NLRB received 280 election petition filings. This number is also well above the monthly average of representation petition filings for 2012 and 2013 which were 164 and 165 respectively. If some unions sat on petitions for representation until the New Rules came into effect in order to take advantage of the changes, there may be some leveling off in the number of election petition filings in the coming months. However, some effects of the New Rules are independent of the increase in election petition filings.

In addition to the significant increase in the number of petitions filed immediately following the New Rules implementation, the number of days between the filing of a petition and an election has plummeted. In 2012 and 2013, elections were typically held 38 days after a petition was filed. For representation petitions filed since April 14, 2015, elections are being scheduled for a median of 23 days after the petition was filed (a reduction in employer campaign time of 40%). Even if the number of election petition filings falls off, that would not affect the median number of days between the filing of a petition and an election. It appears clear that, as anticipated, the New Rules have drastically tilted the field against employers by reducing one of the most valuable resources available in combatting an organizing campaign: time.

The NLRB data confirms that the New Rules are a massive shift toward unions. The National Labor Relations Act grants employers the right to oppose unionization and explain to their employees why unionization is not in their best interests. However, the New Rules reduce the time employers have to make their arguments and educate their employees. While employer groups have challenged the New Rules in federal courts, this week, a federal judge in Texas rejected one such effort contending that the New Rules violate the National Labor Relations Act and the Administrative Procedure Act. While a case filed by the U.S. Chamber of Commerce remains alive in the D.C. Circuit, employers must be prepared for the likelihood that the New Rules are here to stay.

Employers who oppose unionization should consider regular communication about the perils of union representation with employees prior to an organizing drive. In addition, employers should consult with counsel about legal means to avoid unionization. Additionally, upon receiving notice that a union has filed a representation petition regarding their employees, employers should immediately seek counsel as the New Rules do not afford employers the luxury of time and the numbers show that unions have taken advantage of the New Rules.

Sarah K. Ott practices in all areas of labor and employment law. For more information about the NLRB’s new election rules, please contact: Sarah K. Ott | sko@zrlaw.com | 216.696.4441