Employment Relations Board Orders TriMet to Arbitrate

Employer TriMet is the mass transit district for the greater metropolitan area around Portland. ATU Local 757, the Union that represents Employer’s mass transit operators, brought two grievances: (1) A grievance seeking to enforce a contract provision that would allow a terminated manager to return to a union position; and (2) A grievance seeking to challenge the assignment of bargaining unit work to local non-profits under a federal grant program administered by Employer, as a violation of a contract provision that required “lines of the District” to be staffed by Union members. The Employer contended that neither issue was arbitrable because the manager was not a bargaining unit member, and because the contract could not supersede the grant process used by TriMet to allocate federal funds for transit services. However, the Employer refused to submit either issue to an arbitrator.

The Administrative Law Judge for the Oregon Employment Relations Board held that both issues satisfied the standards for arbitrability. The Judge determined that in both cases, the Union was relying on contract language as the basis for its grievance, and that both grievances are not subject to the arbitration provisions of the collective bargaining agreement. The ALJ ordered the Employer to cease and desist from violating the grievance arbitration provisions of the collective bargaining provision, and to process both grievances. The Employer objected to the order, and the Employment Relations Board affirmed.

Talia Stoessel’s Know-Your-Rights Guide to Oregon Employment Law

Attorney Talia Stoessel created a handy know-your-rights guide on Oregon labor and employment laws to provide a simple overview on various aspects of the law applicable to Oregon workers. This guide is geared towards LGBTQ communities but is generally applicable to workers in Oregon as of May 2017. Feel free to contact her at stoesselt@bennetthartman.com or (503) 546-9609 with any inquiries related to the guide or referrals on various legal matters in Oregon or Washington state. Talia is also available to come speak to community groups on the overview of the employment litigation process and how to assess whether workers have potential claims or remedies.

PDF Download: Talia Stoessel’s Know-Your-Rights Guide to Employment Law

Talia Stoessel's Know-Your-Rights Guide to Employment Law-1 Talia Stoessel's Know-Your-Rights Guide to Employment Law-2

A Plaintiff’s Guide To Fed.R.Civ.P. 26 Discovery Proportionality

The Actual Changes To The Text Of Rule 26(b)

Fed.R.Civ.P. 26(b)(1) now says,

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

The 2015 Amendments changed the text of Rule 26(b) in three ways:

  • First, the language defining the scope of permissible discovery was changed to omit discovery “reasonably calculated to lead to the discovery of admissible evidence.”
  • Second, the language describing relevant evidence was changed to omit discovery of “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter,” but only because, as the Advisory Committee Note states, “discovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples.”
  • Third, when it comes to “proportionality,” which was already part of Rule 26(b), “[t]he considerations that bear on proportionality are moved from present Rule 26(b)(2)(C)(iii), slightly rearranged and with one addition.” See Advisory Committee Notes.  That “one addition” was the explicit instruction that courts consider “the parties’ relative access to relevant information.”

Supreme Court Allows Non-Profit, Church Affiliated, Hospitals to Continue to be Exempt from ERISA

In Advocate Health Care Network v. Stapleton, 581 US __, 2017 WL 2407476 (2017), the U.S. Supreme Court affirmed long standing precedent that non-profit, church-affiliated hospitals are exempt from ERISA requirements. Employee pension plans are generally subject to the requirements of ERISA. However, “church plans” are excluded from ERISA coverage. 29 U.S.C. § 1003(2). A “church plan” is defined as “a plan established and maintained…for its employees… by a church or by a convention or association of churches.” 29 U.S.C. §1002(33)(A). This includes “a plan maintained by an organization… the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches.” Id. at §1002(33)(C)(i). For simplicity, these can be referred to as “principal-purpose organizations” (PPO). PPOs include church-affiliated hospitals. An employee of a church or association of churches includes “an employee of an organization…exempt from tax… and which is controlled by or associated with a church or a convention or association of churches,” i.e. an employee of a PPO. Id. at §1002(33)(C)(ii)(II).

Circuit courts have been divided over whether the above language as a whole requires pension plans to be both established and maintained by a church to be eligible for the church plan exemption, or whether they need only be maintained by a PPO to be eligible. The Supreme Court recently resolved this split in the circuits and explained how to read the statutory language above. In Advocate Health Care, the Court upheld the traditional agency interpretation of the church plan exemption. Organizations and courts have been relying for some time on a General Counsel Memo from the IRS that said retirement plans for employees of a religious organization that functions as a nursing home or hospital are church plans if maintained either: (1) by the Catholic Church or (2) by a church-affiliated PPO. Gen. Couns. Mem. 39007, 1983 WL 197946 (July 1, 1983). The Supreme Court found that the IRS memo states the proper interpretation.

Specifically, the Court found that ERISA does not require a plan to have been established by a church to be considered a church plan. Advocate Health Care at *4. Rather, pension plans simply maintained by a PPO are eligible for the church plan exemption. Id. PPOs such as religiously-affiliated hospitals may maintain pension plans, and those pension plans can be considered church plans even though they were not necessarily established by a church. Therefore, a church-affiliated hospital can maintain a pension plan for its employees and it will likely be considered a church plan exempt from ERISA’s requirements, including adequate funding requirements.

WELA Press Release: New Pregnant Workers Law

On May 17, 2017 Governor Inslee signed the pregnant workers accommodations act that Washington Employment Lawyers Association (WELA) worked so hard to get passed. WELA member Katherine Chamberlain prepared this press release from WELA and sent it out Wednesday:

Wednesday, May 17, 2017

New Law Requires Washington Employers to Help Pregnant Workers Remain Part of the Workforce During Their Pregnancies

Gov. Inslee on Tuesday signed into law strong new protections for pregnant workers in Washington. The Healthy Starts Act (Senate Bill 5835) requires Washington employers to provide workplace accommodations to pregnant workers who need them. The law prohibits employers from firing a pregnant worker because she needs an accommodation, or from forcing a pregnant employee to take leave from work if another reasonable accommodation can be provided. The Washington Employment Lawyers Association strongly supports the law.

Until now, Washington law only required employers to accommodate a pregnant worker in the workplace when she had a “disability,” or to the same extent the employers accommodated non-pregnant workers.

As a result, most pregnant workers who needed accommodation for their pregnancies previously had no right to an accommodation, such as for the nausea, vomiting, extreme fatigue, and back pain that accompany a large number of typical pregnancies. Although healthcare providers regularly recommend limits on heavy lifting, sitting or standing for long periods of time, or travel, especially in the final trimester of a woman’s pregnancy, too often employers refused to accommodate, fired pregnant women with these restrictions, or forced them onto unpaid leave—during a time when they needed income, and healthcare benefits, the most.

Now, “Washington has a straightforward law that supports pregnant workers and promotes healthy pregnancies by requiring employers to provide reasonable accommodations to pregnant women,” explained employment lawyer Katie Chamberlain, a member of WELA’s legislative committee who testified in favor of the new law. “Reasonable accommodations include: more frequent restroom breaks; modification of no food or drink policy; job restructuring; modified work schedule; reassignment to a vacant position; modification of equipment, seating, or work station; temporary transfer; assistance with manual labor and limits on lifting; and schedule flexibility for pre-natal visits, and may include other changes to the job or work environment.”

An employee who is denied a reasonable accommodation for her pregnancy, or who is fired or otherwise retaliated against by her employer for requesting an accommodation, can seek to vindicate her rights, get her job back, or obtain compensation, through a lawsuit.

Under the new law, an employer need not provide an accommodation if doing so would impose an undue hardship, which means an action requiring significant difficulty or expense. The new law applies to employers with 15 or more employees and will take effect in 90 days.

The Washington Employment Lawyers Association’s Legislative Committee is proud to have advocated for this bill with Representative Jessyn Farrell, Senator Karen Keiser, and many other allies.

NLRB Determinations Regarding NLRA Coverage of Housekeeping versus Theology Faculty at Religious Universities

In Saint Xavier University, 365 NLRB No. 54 (April 6, 2017), the National Labor Relations Board found that housekeepers of a self-identified religious educational institution are within the Board’s jurisdiction. The Board applied Hanna Boys Center, 284 NLRB 1080 (1987), finding that non-teaching employees of religious institutions or nonprofit religious organizations will be covered unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. This is in contrast to the Board’s finding that faculty employees in Theology and Religious Studies Department and in its School of Theology and Ministry are NOT covered because the University holds those employees out “as performing a specific role in creating and maintaining the school’s religious educational environment.” See Seattle University, 364 NLRB No. 84 (August 23, 2016).

Ninth Circuit Rules in Favor of Employees in Two Sexual Harassment Cases

On March 24, 2017, the Ninth Circuit determined in Anderson v. CRST International, Inc., et al, No. 15-55556 that a jury could find that an employer’s remedy in response to a female truck driver’s sexual harassment complaint was not enough even though the employer separated her from the offending co-worker. The Ninth Circuit explained: “[] Anderson presents evidence that CRST never actually investigated her complaint and never informed Vegtel of the fact that he was prohibited from driving with female truck drivers in the future.” This holding leaves open an interesting question of the extent of an employer’s obligation to inform an employee of the reparative action taken. Most employers refuse to share that information with complaining employees, citing to confidentiality of personnel records. That approach can now be challenged with this precedent.

The Ninth Circuit also reversed summary judgment because of the way that the employer treated the female truck driver after she complained, holding that a jury could find retaliation because the employer failed to reassign her to a new truck route after the incident while providing her with an ambiguous email with a list of other female truck drivers with whom she could work. The Ninth Circuit made clear that “an employer’s remedy is not effective even though it stops harassment if the remedy targets the victim and puts her in a worse position.”

Also, on February 23, 2017, the Ninth Circuit determined in Zetwick v. County of Yolo, No. 14-17341 that a jury could find that a male sheriff created a hostile or abusive work environment through his conduct of hugging and kissing female employees more frequently and in a different way than male employees. The Ninth Circuit rejected the argument that hugging could only constitute “ordinary workplace socializing.” This case also highlights that applying Title VII is not a “mathematically precise test” but, rather, a Court must truly consider the totality of the circumstances.

11th Circuit Finds Title VII Does Not Protect Against Sexual Orientation Bias

The 11th Circuit in Evans v. Georgia Regional Hospital, Case No. 4:15-cv-00103-JRH-GRS (March 10, 2017) finds that Title VII doesn’t protect sexual orientation bias. This is in contrast to the EEOC’s interpretation, which is stated on its website as: “While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”

Labor & Employment Law Developments Under the Trump Administration

National Labor Relations Board (NLRB): On January 25, 2017, Philip A. Miscimarra (R) appointed as acting chair to the NLRB. People’s World website reports that prior to 2013, Miscimarra worked for several law firms with a reputation for union-busting and as an NLRB Board member, he “consistently dissented from rulings favoring working people that have been handed down by the (pro-union Democrat) Board majority.”

Equal Employment Opportunity Commission (EEOC): On January 25, 2017, Victoria Lipnic appointed to serve as acting chair of the EEOC. According to a Law360 article, Lipnic voted against the EEOC’s 2015 decision finding that sexual orientation discrimination is gender discrimination under Title VII. She also voted against the EEOC’s 2014 pregnancy discrimination guidance.

U.S. Supreme Court: On January 31, 2017, Trump nominated Judge Neil Gorsuch to fill the open seat. According to an AFL-CIO blog article, Gorsuch “has ruled against protecting the health and safety of workers, made it harder to have discrimination-free workplaces and argued for corporations’ misconduct to be protected from correction by investors and consumers.”

Federal Right-to-Work/Right-to-Shirk Law: On February 1, 2017, Republicans in Congress announce plan to introduce Right-to-Work/ Right-to-Shirk Law and implement it nationwide. This would be a blow to the labor movement and the communities in which union members reside because unions would be required to provide representation to all employees in the unit regardless of whether they pay union dues. For more information from the AFL-CIO: Deceptive Right to Work Laws Hurt Everyone

U.S. Secretary of Labor: Trump initially nominated Andrew Puzder as U.S. Secretary of Labor. Mr. Puzder has repeatedly violated labor laws and is a vocal opponent of workers’ rights, describing the ideal worker as a machine: “They’re always polite, they always upsell, they never take a vacation, never show up late, there’s never a slip-and-fall, or an age, sex, or race discrimination case.” But, as of February 15, 2017, Puzder withdrew his nomination. Luckily, in his place, Trump picked former US Attorney Acosta as a nominee for U.S. Secretary of Labor on February 16, 2017. Richard Trumka, president of the AFL-CIO, has stated “in one day, we’ve gone from a fast-food chain C.E.O. [Puzder] who routinely violates labor law to a public servant with experience enforcing it.” View Article