Like most statutes prohibiting discrimination, Title VII also outlaws retaliation so that individuals will not be inhibited from asserting claims under the statute. Thus, Title VII prohibits retaliation against anyone who opposes an act made unlawful by it. The question, therefore, becomes what constitutes opposition to a practice unlawful under Title VII and to whom may such opposition be addressed?
With an ever mobile workforce utilizing electronic devices, non-compete/non-solicitation agreements are more common than ever before. More employees at lower levels of organizations are being asked to sign such agreements which restrict their subsequent employment. Pennsylvania courts, like those in many other states, look with disfavor on such agreements – viewing them as historic restraints of trade which inhibit an individual’s ability to earn a living.
The NLRA requires employers whose employees are represented by a union to maintain the employee’s existing terms and conditions of employment and to negotiate with the union before implementing any changes to those conditions. Even fundamental changes in the business itself, which are exclusively the prerogative of management and not subject to bargaining, will give rise to a bargaining obligation over the effects of those decisions on unionized employees.
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.
Employers tend to like certain aspects of arbitration. Often it provides a faster and more economical resolution to a dispute than litigation. Parties can represent themselves, without the need for counsel, before an impartial decision maker chosen by them. Most arbitrators have some level of experience or expertise in the subject matter of the controversy they will be deciding. Courts and juries generally will have no such experience. Employers also believe that an arbitrator’s economic self interest, the desire to be selected for future cases, will prevent an arbitrator from entering a “runaway jury” size adverse award significantly beyond the actual, documented losses and, where appropriate, prevailing party attorney fees.
Retaliation against an employee who has filed a complaint, testified, or exercised any right under OSHA is a violation of that Act. OSHA, however, has a small window of opportunity for an employee who believes he has been retaliated against by his employer to bring a claim before OSHA. To be timely, an employee must file his whistleblower complaint with OSHA within thirty days from the date of an adverse action.
Recently the Supreme Court addressed the ability of a union contract, custom, or practice to dictate when the putting on or taking off of personal protective equipment constitutes “changing clothes” and thus constitutes non-compensable time. In Sandifer, the Court held that when the vast majority of such preliminary or postliminary time is consumed in donning-and-doffing of what clearly are clothes, then the entire period, including the time related to personal protective equipment which is not clothing, falls under the collective bargaining agreement’s exception to compensable work time. The Court acknowledged that some personal protection equipment does not meet the definition of clothes, yet the amount of time spent in donning or doffing these items may be so small and difficult to track that such time need not be counted for purposes of computing compensable work time.
As regular readers of this blog know, the Equal Employment Opportunity Commission’s focus on disability discrimination – and the circumstances under which a reasonable accommodation of a disability needs to be made – has been in the news several times in 2013. While the question of whether leave is a reasonable accommodation may be the one we hear about the most, employers frequently get unusual or unique accommodation requests. For instance, must an employer consider an employee’s request for free onsite parking as a reasonable accommodation? That question was recently addressed by the Fifth Circuit Court, and the decision of the Court is a useful reminder for employers everywhere.