Wanting to Hire an Aussie?

Then you may want to comment on the rules related to a new visa category (E-3) that is limited to "nationals of the Commonwealth of Australia." Apparently recent legislation is going to allow 10,500 E-3 visa's anually. If you are interested in commenting on the rules under which they will be issued, now is your chance. Here is the Notice of proposed rulemaking; request for comments as published in today's Federal Register.

Who Controls Your Email System -- You or Your Employees?

Normally the answer is clear — the employer. But the National Labor Relations Board's grant of a request for oral argument on the appeal of the ALJ's decision in The Guard Publishing Company, d/b/a The Register-Guard, Cases 36-CA-8743-1, makes it clear there is at least another side to be considered when the communications involve concerted activity under the NLRA.

The issue, much oversimplified is — can employers prohibit their employees from using the company's email system to discuss union issues.

But the issues are more complex, so much so the the Board has asked the parties (and amicus) to provide input in seven different areas. My thoughts in red:

1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non–job-related e-mails but not those related to union or other concerted, protected matters. [Could any employer actually stop all non-work related email activity even if it wanted to?]

2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied? [Good luck to the Board in applying a 1947 statute to a 21st century workplace. If you can do it, what about trying your hand on the 1938 FLSA.]

3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?

4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer? [Just one more question to put on your checklist of items to think about when considering telecomuting employees.]

5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?

6. How common are employer policies regulating the use of employer e-mail systems? [A very high percentage I would hope.] What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?

7. Are there any technological issues concerning e-mail or other computer based communication systems that the Board should consider in answering the foregoing questions? [Kudos to the Board for a very good question.]

Argument will be heard on March 27. If history repeats itself, it will be sometime thereafter before a decision is issued, followed by an appeal to a circuit court and at least a petition for certiorari, before we have a definitive answer.

Although given the powers of the Board to reconsider its positions, we know nothing is ever really final until the Supreme Court says so. See Weingarten Rights Do, Do Not, Do, DO NOT Apply to Non-Union Employees for one such example.

Same Sex Couples, The Hair of the Dog and the FLSA

Although the Fourth Circuit Court of Appeals is often viewed as conservative I really don't think it was making a moral judgment when it wrote:

When relationships have deviated from the traditional understanding of employment in fundamental ways, the Supreme Court has refused to shoehorn them into the Act. (my emphasis)

even though it was discussing a same sex relationship gone sour.

I am sure Michelle Hirsch and Tammy Steelman foresaw only a mutually harmonious relationship when they not only joined households but Steelman quit her job to join Hirsch's already established dog grooming business, The Hair of the Dog. Unfortunately instead of bliss, when problems overtook the relationship, litigation soon followed.

Since traditional family law remedies were not available, Steelman's lawyer creatively argued (along with state law causes of action) that Hirsch had not been adequately compensated for her services as an employee as required by the Fair Labor Standards Act.

Although one wonders if the Court could not have used the same rationale that the 5th Circuit did last week in tossing an FLSA case because the plaintiff did not show that his occupation was engaged in commerce, see Sobrinio v. Medical Center's Visitor's Lodge, Inc. (5th Cir. 1/4/07) [pdf], the 4th Circuit instead focused on the domestic arrangements of the couple and whether or not Steelman's situation was what the drafters of the FLSA intended when it defined "employee".

Bottom line the Court concluded it wasn't:

Taking the evidence in this case in the light most favorable to her, the plaintiff cannot be adjudged an "employee" for purposes of the FLSA under these precedents, or under any analysis based in "economic reality." The intended lifetime partnership she described was not "the bargained-for exchange of labor for mutual economic gain that occurs in a true employer-employee relationship." Harker, 990 F.2d at 133 (internal quotations omitted). According to the plaintiff, the couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than as a transfer of one individual’s assets to another in exchange for labor. The plaintiff did not obtain a bargained-for portion of her supposed employer’s assets — she took from those assets for her own purposes with a discretion that is fundamentally alien to employer-employee relationships.

Although noting that possible state court rememdies existed for Steelman, the Court dismissed her FLSA claim. Besides proving again that employment law has the greatest stories, Steelman v. Hirsch (4th Cir. 1/10/07) [pdf] is yet another reminder of the perils of mixing romantic relationships and work.

The Swinging of a Pendulum? MSJ's and Employment Law

Anyone who has been around the legal world for a long time knows that how the law is interpreted tends to swing back and one forth from one side to another just like a pendulum (some might say one extreme to another). It may be just a blip on the screen, but several comments lately have made me more aware of a growing feeling that we may be in the midst of one of those swings in the legal world I inhabit — employment law.

Just a couple of examples — First, Professor Paul Secunda's comment this morning at the Workplace Prof Blog:

If my home state of Mississippi is even considering passing a minimum wage increase, you know that you have a bona fide minimum wage wave sweeping the country.

Minimum Wage Craze Sweeping the Nation.

And a second, from Tom Peters, hardly an anti-business figure, commenting on Peter Hebert's NYT article, Working Harder for the Man ($) on the disparity between payments to CEO's and non-supervisory employees: "I believe in markets—and I also believe that we are on the verge of backlash of a magnitude seldom seen."

If it is a true swing, one of the canaries in the coal mine could be the current main battleground of most employment law cases — summary judgment. Which made more pertinent today's post in the ACS Blog that begins:

Circuit Judges in the Fourth and Eighth Circuits have recently criticized their colleagues for being too quick to grant summary judgment--a quick method of resolving a case which should only be granted when no issues of material fact are reasonably in dispute.

And the two cases in which that opinion was voiced (both dissents by the way), Luh v. J.M. Herber Corp. (4th Cir. 12/21/06) [pdf] and Melvin v. Car-Freshener, Inc. (8th Cir. 7/12/06)[pdf] are — you guessed it, employment law cases.

If that pendulum is in fact swinging, to borrow advice recently given Rudy Giuliani's campaign after it lost a briefing book — employment law litigators who have never tried a jury trial (and their clients) better buckle their chinstraps.

Minimum Wage Increase Takes One Step Forward Today

That's the plan according to the chair of the House Committee on Education and Labor, George Miller who is announcing an expected vote on the increase in the House of Representatives today. You can check out the details of how the House proposal would work at the Committee's website, Raise the Minimum Wage. The bill itself is the Fair Minimum Wage Act of 2007.

However, the UPI is reporting that there may be problems in the Senate unless it is coupled with tax relief for small businesses. See Minimum wage may face Senate problem.

The Failure to Rehire After a Release - A Common Sense View from the 6th Circuit

Just 3 days before Christmas, the 6th Circuit held that an employee who had signed a release of his age claim in return for an enhanced severance could not claim that the failure to rehire him was age discrimination. The Kellogg Company v. Sabhlock (6th Cir. 12/22/06) [pdf].

Although the Court was careful to point out that it was not setting an all encompassing rule — "Under some facts a general release will bar a subsequent failure to rehire claim and under other facts it will not. It depends on how closely related the rehire is to the original termination in terms of time and subject matter." — and Kellogg had done its job by including an agreement that it had no obligation to rehire him at any time in the future, it was still a nice Christmas gift for employers faced with a problem that appears almost insoluble if discrimination and retaliation statutes are interpreted literally.

Here the 6th Circuit avoided both an unfair result and perhaps more importantly for others a rule that would discourage enhanced payments in return for releases, by holding that "his claim of age discrimination in the failure to rehire arose out of his termination and cannot be the basis for a separate claim. After releasing an age discrimination claim, the employee cannot resurrect the age discrimination claim by reapplying for employment." (my emphasis)

USERRA Uses 2 not 3 Prong Burden Shifting Approach - 1st Circuit

Reversing a district court's summary judgment, the 1st Circuit today joined what it found all other circuits to have considered the issue and holds that the burden shifting analysis in USERRA cases is the 2 prong standard used for the NLRA, rather than the 3 prong McDonnell Douglas standard used in Title VII. Velasquez-Garcia v. Horizon Lines of Puerto Rico, Inc. (1st Cir. 1/4/07) [pdf].

Garcia complained he was terminated because of his military service. The company claimed he was terminated for violating its Code of Business Conduct because he was cashing other employee's paychecks for a fee. He had not been warned about his conduct nor did he have any prior disciplinary action. He claimed discrimination in violation of USERRA. The Court of Appeals after reviewing the legislative history found that the appropriate test for burden shifting was that used under the NLRB:

The employee first has the burden of showing, by a preponderance of the evidence, that his or her protected status was ‘a substantial or motivating factor in the adverse [employment] action’; the employer may then avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee's protected status.

Emphasizing its point, the Court stressed "this two-pronged burden-shifting analysis is markedly different from the three-pronged burden-shifting analysis in Title VII actions."

And in this case decisive. Once Garcia established that his military service may have played a role in his termination, the employer could win only by showing that it would have taken the action regardless of his military service. Since all that was required at the summary judgment stage was for Garcia to show there were triable issues of fact on both, the appeals court sent the case back for a jury to decide.

The case also has a good study of how courts can differ in the way they view evidence. It may also be a reflection that at times certain plaintiffs' claims are more in favor, for lack of a better term. Unlikely that it is on a conscious level, but judges are humans (at least most are) and are influenced by the same things as all other citizens, including at this particular moment great gratitude for those who serve in the military.