Employment Law Update. Jonathan Ingber
elect to litigate on behalf of the employee, former employee, or applicant. This result is relatively infrequent, as the EEOC has limited resources. The EEOC is more likely to litigate cases in which a number of employees, former employees, or applicants are making the charge, or when the employee, former employee or applicant has filed a charge that is a high enforcement priority within the EEOC.b the EEOC issues a Notice of Right to Sue that enables the recipient to file suit in federal court within 90 days of receipt of the letter. Once the recipient files suit, the EEOC will typically dismiss the original charge filed with the EEOC.
3 If the EEOC investigates for more than 180 days and has not yet issued a Dismissal or Letter of Determination, then the employee, former employee, or applicant can request a Notice of Right to Sue, which enables the recipient to file suit in federal court within 90 days of the letter's receipt.
These referenced 90-day periods are strictly enforced — meaning all involved parties know the timetable for subsequent developments once the EEOC issues its decision.
Knowledge check
1 Why may small businesses be sued in discrimination cases more often in state court than in federal court?Small businesses commit more state discrimination law violations than federal discrimination law violations.More small businesses are subject to state anti-discrimination laws than federal anti-discrimination laws.More small businesses are engaging in discrimination than larger businesses.Plaintiffs have a more difficult task in reaching federal court minimum damage thresholds than in reaching state damage thresholds in discrimination cases.
Arbitration clause and class action by employees
Can your business use an arbitration clause and class waiver to rid itself of class actions and class arbitrations by employees? On May 21, 2018, the U.S. Supreme Court17 answered this question in the affirmative and decided Epic Systems Corp. v. Lewis, a case consolidated with Ernst … Young LLP et al. v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc. These cases reached the Supreme Court after the Sixth, Seventh, and Ninth Circuit Courts of Appeal ruled that requiring employees to sign a class action waiver and agree to only bring employment claims in separate arbitration proceedings violated the NLRA and in effect “nullified” the Federal Arbitration Act (FAA). The Second, Fifth, and Eighth Circuit Courts of Appeal had previously ruled the class waiver and compelled separate arbitration did not violate the NLRA and were enforceable provisions under the FAA.
By a 5-4 vote along ideological lines, the Supreme Court held that a class waiver and provisions requiring individual arbitration of employment disputes did not violate the NLRA, and that the FAA did not require a different result. The Court found that Section 7 of the NLRA, which permits employees to engage in certain “concerted activities” in the workplace, did not encompass a right to engage in “concerted activity” via class action suits or class arbitrations. The Court's decision focused on Congressional support for arbitration of disputes in accordance with the FAA, and found that the NLRA has no language that overrides or contradicts the FAA. The Court also held that the Fair Labor Standards Act, which permits class actions, did not supersede the FAA.
To say this case was a significant victory for employers — and a strategic defeat for class action lawyers — likely understates the result. Every employer who is not barred by law or contract from using a class waiver and individual arbitration provisions should carefully consider implementing a class waiver and individual arbitration agreement with its employees. Employers should consult employment law counsel to ensure the agreement is properly prepared, implemented, and enforceable.
Invalidation of a major source of financial security for labor unions in the public sector
The U.S. Supreme Court in the 2017–2018 term decided its most anticipated labor case in decades.18 Janus v. American Federation of State, County, and Municipal Employees (AFSCME), in a 5 to 4 majority opinion, Associate Justice Alito's opinion ended with these words: “Abood19 was wrongly decided and is now overruled.” At issue was the “agency fee” that nonmembers of a union must contribute to union coffers to cover expenditures that assist in the collective bargaining process, but specifically excludes expenditures related to political and ideological projects, holding that such a requirement is violative of the first amendment rights of such nonmembers. As public employees, the end result of union and governmental employer negotiations affects a state's budget crisis, taxes, education, child welfare, healthcare, and minority rights. In a powerfully written dissent, Associate Justice Kagan argued: “[1] The workplace remains both the context and subject matter of expression. If all that speech really counted as ‘of public concern,’ as the majority suggests, the mass of public employees' complaints (about pay and benefits and workplace policy and such) would become ‘federal constitutional issue[s].” “[2] And so the key point about today's decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis (unique) among those addressing public employee speech — and will almost surely remain so.” “[3] Respecting stare decisis means sticking to some wrong decisions.” “[4] Stare decisis (the idea) that ‘today's Court should stand by yesterday's decisions’—is ‘a foundation stone of the rule of law.’” And finally, “[5] The majority is likewise wrong in invoking ‘workability’ as a reason for overruling Abood. Does Abood require drawing a line? Yes, between a union's collective bargaining activities and its political activities. Is that line perfectly and pristinely ‘precis[e],’ as the majority demands? Well, not quite that — but as exercises of constitutional line drawing go, Abood stands well above average.”
Federalism: Choice of law (federal or state)
Divided government raises a host of issues. It sounds a bit inefficient, but then totalitarian government is the quintessence of efficiency. Remembering that ultimate sovereignty rests with the people, how shall their agents be organized? To what extent shall the federal government be superior to all the separate governments of the states; over which specific areas shall this limited government reign supreme? Professor Belz20 has expressed the following salient thoughts on the concept of federalism: “If sovereignty was supreme authority, it was by definition destroyed when divided. It was illogical and irrational to contemplate a government within a government21as Americans did in suggesting that within the empire, side by side with Parliament's power over commerce and other general matters, the colonial assemblies possessed sovereignty in local affairs.” The development of federalism is a continuous, unending process.22
So how does federalism affect the huge field of employment and labor law? There is an argument that state law should be permitted to play a complementary role in all of those areas of workplace regulation where federal law is silent or absent.
Knowledge check
1 What precisely is encompassed within the concept of federalism?Federalism is concerned with the constitutional division of power between the three branches of government: legislative, executive, and judicial.Federalism is another way of expressing the supremacy of the federal government over the governments of the respective states.Federalism refers to a system of government in which there is a union of sovereign states, united for purposes of common action often in relation to other states.Federalism recognizes that the states are sovereign possessing powers not allocated to the federal government, which is a government of extensive but limited powers.
Notes