Congress Considering "Card Check" Bill to Increase Unionization

According to these interesting data from the Bureau of Labor Statistics, about 7% of the private sector employees are unionized; that number is about 36% for government employees. So, many don't pay attention updates like this. That may change soon. Congress is interested in increasing that percentage.

Here's a quick and oversimplified overview of union organizing under current laws:

When unions attempt to organize employees, they collect "authorization cards" from employees. Once they obtain enough cards, they typically present them to the employer and demand the right to bargain. (Some unions go straight to the NLRB and petition for an election). But the employer can reject the cards and demand a secret ballot election usually conducted by the National Labor Relations Board. Once the Board processes a petition for an election, the union and employer have about six weeks to "campaign" until the election. The union and the employer present their respective cases, and the employees vote in a secret ballot. The NLRB counts the votes. Unions and their advocates argue this election process deters unionization because employers use unfair or illegal election tactics. Employers argue they and the unions present the facts and let the employees decide. About half the time, the employees decide against the union. Unions don't like that success rate.

So, apparently a majority of the House of Representatives would like to skip all that secret ballot election stuff and let the union obtain representation rights just by collecting authorization cards. HR 800, The Employee Free Choice Act would do just that.

It's a lot easier to organize employees when the employer does not get a chance to explain why union representation is not a good idea. And the First Amendment gives unions a free reign on what they can say to obtain a signature on an authorization card. I bet peer pressure increases the number of signatures. Organizers' unchallenged promises about the benefits of unions help, and there could even be some signature hanky-panky once in a while too. (Such a cynic).

No one is paying attention to the rest of the Bill, though. Another section would require unions and employers to mediate and then arbitrate if negotiations do not quickly result in a new collective bargaining agreement. Lots of power in the hands of one arbitrator to unilaterally "impose" an agreement. Another provision imposes penalties of up to $20,000 per violation of "unfair labor practices" committed by employers before the first collective bargaining agreement is signed.

This Bill is not new. But with the power shift in Congress, this year it is gaining traction. Vice President Cheney has said publicly it will be vetoed if passed. But sometimes deals are made.... So stay tuned.

AB 1825 Harassment Training Regulations Disapproved

The California Fair Employment and Housing Commission's regulations implementing AB 1825 (mandatory sexual harassment training) failed to gain approval from California's Office of Administrative Law. The FEHC made the announcement here.

The OAL's chief concern was that the regulations were not sufficiently "clear" in certain respects, particularly regarding who is qualified to prepare and conduct anti-harassment training under the statute. There were also some more technical flaws.

The FEHC plans to modify the regulations and publish them for a brief public comment period
before re-submitting them to the OAL. The FEHC's modifications may have a significant effect on existing programs, depending on whether the new standards "raise the bar" on who is qualified to prepare or conduct AB 1825 training.

Once the regulations are re-issued, employers should reevaluate whether their trainers and training programs meet the new standards.

DGV

Ninth Circuit Explains "Regarded As" Claims under the ADA

An employer's acknowledgement that an employee has an "impairment" is not enough to support a claim that the employee is "regarded as" having a disability.
Walton v. U.S. Marshall Service involves a former security guard at a federal courthouse. The essential functions of the job include the ability to "localize" sound. Walton had only one functioning ear, which affected her ability to localize sound. After a required medical exam, the security services contractor terminated Walton's employment because she could not perform essential functions of her job. She claimed the contractor "regarded" her as having a disability.
The Ninth Circuit held:

to state a "regarded as" claim a plaintiff must establish that the employer believes that the plaintiff has some impairment, and provide evidence that the employer subjectively believes that the plaintiff is substantially limited in a major life activity. If the plaintiff does not have direct evidence of the employer's subjective belief that the plaintiff is substantially limited in a major life activity, the plaintiff must further provide evidence that the impairment imputed to the plaintiff is, objectively, a substantially limiting impairment.

Applying this rule, the Court of Appeals decided that the employer's actions demonstrated only that the employer regarded the employee as having an "impairment," but there was no evidence the employer considered the impairment to be "substantially limiting" in one or more major life activities.

Employers often ask whether exploring the possibility of accommodation, asking an employee to have a fitness for duty examination, or otherwise acknowledging medical impairments will create "regarded as" liability. This decision makes it harder for plaintiffs to make that argument under the ADA and federal Rehabilitation Act.

Ninth Circuit Affirms Order Certifying Huge Class Action Against Walmart

A couple of years ago, the U.S. District Court for the Northern District of California certified a class of female employees against Walmart. The case was noteworthy because it is a nationwide class action in which the plaintiffs claim Walmart discriminates against female employees in setting compensation, making promotion decisions and other issues. The class size was estimated at 1.5 million workers.

Walmart appealed the class certification order. The Ninth Circuit heard oral argument in August 2005, and finally issued its opinion today. A three judge panel voted 2-1 to affirm the district court's decision. Barring settlement or a successful decertification of the class, the huge class action against Walmart will proceed to trial.

DGV

Another San Francisco Paid Sick Leave Update

The San Francisco Office of Labor Standards Enforcement (OLSE) has come up with some FAQs regarding the San Francisco paid sick leave ordinance. The FAQs give some insight as to the city's enforcement position. The answers to some of the questions will confirm that the ordinance is nearly impossible for large employers with operations within and without San Francisco to comply with. The law goes into effect this Monday, February 5, 2007. Good luck!

DGV

Frere Jacques, Dormez-vous?

Now and then one should look beyond California's borders for employment law trendzzzzz. So, according to this article in the San Francisco Chronicle, France's health ministry is looking into whether to mandate nap time for workers. With their 35 hour workweek and months of vacation, sick time, etc., the stress of finding things to do in one's spare time apparently causes sleepless nights for French workers. OK, I'm a little jealous. There is no truth to the rumor that San Francisco is considering mandating juice and cookies. Yet.

DGV