Mark Gaston Pearce re-nominated to the NLRB


The President has nominated Mark Gaston Pearce to be a Member of the National Labor Relations Board. [Announcement] That's bit of a surprise, because employer-side advocates have made it quite clear that they do not want him back on the Board. Of course, it could be they don't want any Democrat nominated, and are quite happy to have a 3-1 Republican majority that they have right now, rather than a 3-2 majority. 

Now we get to watch another wrestling match as the Senate decides whether to confirm this nomination. I think the Republicans in the Senate will need to see some major concession from the Democrats if that is going to happen.

Mark Gaston Pearce was sworn in as a Board Member on April 07, 2010, following his recess appointment, and was confirmed by the Senate on June 22, 2010. On August 23, 2013 he was sworn in for a second term that expired on August 27, 2018. He served as Chairman of the National Labor Relations Board from August 27, 2011- January 22, 2017. 

His most recent term expired on August 27, 2018, leaving the Board with only one Democrat vs. three Republicans.

Pearce was a founding partner of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux, where he practiced union and plaintiff side labor and employment law. Prior to his entry into private practice Mr. Pearce was an attorney and District Trial Specialist in the Buffalo NY Regional office of the NLRB. By appointment of the Governor of the State of New York Mr. Pearce served on several commissions as well as the New York State Industrial Board of Appeals, where he ruled on appeals of wage and hour decisions of the NYS Department of Labor. He has taught at Cornell University's School of Industrial Labor Relations Extension, and is a Fellow in the College of Labor and Employment Lawyers. Mr. Pearce received his Juris Doctor from University at Buffalo Law School of the State University of New York, and his Bachelors degree from Cornell University.

Supreme Court cases set for argument

Four employment law cases are set for argument at the US Supreme Court this fall, starting on opening day - October 1, 2018.

ADEA: Mount Lemmon Fire District v. Guido [Briefs] raises the issue of whether a local government is covered by the Age Discrimination in Employment Act even if it has less than 20 employees. To be argued Oct. 1, 2018. My comments: Does ADEA 20-employee minimum apply to local governments? US Supreme Court will decide

Arbitration: New Prime Inc. v. Oliveira [Briefs] raises two issues: (1) whether an independent contractor's arbitration agreement is covered by the Federal Arbitration Act, and (2) whether the trial court (rather than an arbitrator) should resolve that threshold question. To be argued Oct. 3, 2018. My comments: Who decides arbitrability question? US Supreme Court will decideCan an independent contractor have a "contract of employment"?


Class-action arbitration: Lamps Plus Inc. v. Varela [Briefs] raises this issue: "Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements." To be argued Oct. 29, 2018. My comments: Class action arbitration case hits US Supreme Court.

Payroll tax: BNSF Railway v. Loos [Briefs] – Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act. To be argued November 6, 2018. My comments: Another railroad payroll tax case hits the US Supreme Court

Filing an EEOC charge is not jurisdictional

40 years of precedent – gone.

The 10th Circuit has held that an employee's failure to file an EEOC charge is not a jurisdictional barrier to filing a discrimination suit. Instead, it merely permits the employer to raise an affirmative defense of failure to exhaust. Lincoln v. BNSF Railway Company (10th Cir 08/17/2018) [PDF].

After becoming partially permanently disabled (and unable to work outdoors), two employees each applied for more than 20 jobs and were rejected. The employees sued claiming violation of the Americans with Disabilities Act (ADA) – discrimination, failure to accommodate, and retaliation. The trial court dismissed several claims for lack of jurisdiction on the ground that filing an EEOC charge was a jurisdictional prerequisite to suit. The trial court granted summary judgment for the employer on the other claims.

The 10th Circuit analyzed cases dealing with both timeliness and total failure to file an EEOC charge under Title VII and the ADA. Then the three-judge panel checked in with all active judges in the Circuit and got their concurrence. Then they overruled their prior cases.

The court remanded for the trial court to determine whether the employer had waived its affirmative defense.

On the merits of several claims the court held that the employees were not qualified for the jobs they applied for or that other employees were more qualified, and that the employees did not show that the employer's proffered reasons were pretextual. As for a small number of claims as to which there were triable issues of fact, the court remanded for reconsideration.

$277,565 plus $445,322 for diabetic who was not accommodated

The EEOC and Atkins sued the employer for violation of the Americans with Disabilities Act (ADA) alleging failure to accommodate and discriminatory discharge claims. The jury found in favor of Atkins on both claims and awarded $27,565 in back pay and $250,000 in compensatory damages. The trial court awarded Atkins' lawyers $445,322 in attorney fees. The 6th Circuit affirmed. EEOC v. Atkins (6th Cir 08/07/2018) [PDF].

Atkins, a diabetic, had two incidents while working as cashier, requested an accommodation of keeping orange juice at her register, but the store manager told Atkins it was against company policy. The manager failed to explore any alternatives and never relayed the matter to a superior. Eventually, Atkins took some juice from a store cooler and drank it before paying for it. And the employer fired her for violating the employer's ant-grazing policy.

The court found that the jury had ample evidence to conclude that the employer failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding discriminatory discharge, the court explained a company may not illegally deny an employee a reasonable accommodation to a general policy (anti-grazing policy) and use that same policy as a neutral basis for firing her. Hence "failure to consider the possibility of reasonable accommodations for known disabilities, if it led to discharge for performance inadequacies resulting from disabilities, amounted to a discharge solely because of the disabilities."

Never mind about valet uniforms. Focus on the tickets they use. [You can't make this up.]

The 11th Circuit has a new explanation for why a company employing valets might be a covered enterprise under the FLSA. Asalde v. First Class Parking (11th Cir 08/03/2018) [PDF] In its June 29 opinion [PDF] the court said that a jury could find that the uniforms worn by valets are "materials" and that the valets "handle" the uniforms. In its August 3 opinion – without explaining why – the court ignores uniforms and examines valet tickets.

Asalde, a valet, brought claims in a putative collective action under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The trial court granted summary judgment for the employer; the 11th Circuit reversed. The case turned on whether the employer was a covered enterprise under the FLSA, and that question turned on whether valets who park customers' cars are "handling … materials" that have moved in commerce. 29 U.S.C. § 203(s)(1)(A)(i). The court concluded that a jury could find that the valet tickets used by the plaintiff are "materials," so the employer could possibly be a covered enterprise.

The court had previously held that cars parked by valets are not "materials" because they are an item on which a service is performed rather than the means of performing the service. Tickets are a different matter. "A jury could find that the valet tickets are 'articles necessary for doing . . . something,' i.e., providing the commercial service of parking cars. Second, a jury could find that the valet tickets have a "significant connection' with [defendant]'s commercial activity."

The court also found that there was evidence to support a finding that the tickets "moved in commerce" into the state of Florida. A ticket was stamped "PRINTED IN USA," as well as "SOUTHLAND PRINTING, SHREVEPORT, LA." [In its June 29 opinion the court was impressed that uniforms had labels such as "Made in ________."]

By the way, the judge who dissented in the original decision has retired, so the most recent decision was from the remaining two – a "quorum."

NLRB will revisit employees' access to their employer’s email system

In a notice [PDF] issued August 1, the National Labor Relations Board invites the filing of briefs on whether the Board should adhere to, modify, or overrule Purple Communications, Inc., 361 NLRB 1050 (2014). In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act. In doing so, the majority in Purple Communications overruled Register Guard, 351 NLRB 1110 (2007), which held that while union-related communications cannot be banned because they are union-related, facially neutral policies regarding the permissible uses of employers’ email systems are not rendered unlawful simply because they have the incidental effect of limiting the use of those systems for union–related communications. In addition, while Purple Communications and Register Guard addressed only email systems, the Board is also inviting comment on the standard it should apply to evaluate policies governing the use of employer-owned computer resources other than email.

Here are the specific questions being asked:

1. Should the Board adhere to, modify, or overrule Purple Communications?

2. If you believe the Board should overrule Purple Communications, what standard should the Board adopt in its stead? Should the Board return to the holding of Register Guard or adopt some other standard?

3. If the Board were to return to the holding of Register Guard, should it carve out exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system (e.g., a scattered workforce, facilities located in areas that lack broadband access)? If so, should the Board specify such circumstances in advance or leave them to be determined on a case-by-case basis?

4. The policy at issue in this case applies to employees’ use of the Respondent’s “[c]omputer resources.” Until now, the Board has limited its holdings to employer email systems. Should the Board apply a different standard to the use of computer resources other than email? If so, what should that standard be? Or should it apply whatever standard the Board adopts for the use of employer email systems to other types of electronic communications (e.g., instant messages, texts, postings on social media) when made by employees using employer-owned equipment?