Friday, December 12, 2014

VW and UAW: Sign and then what?

VW announced that the UAW has been certified as representing at least 45% of the workforce at its Tennessee plant under its Community Organization Engagement policy and that the union will therefore have the opportunity to meet with plant management and executive committees every other week.  The UAW has indicated that it is planning to train employees to participate in the works council beginning in 2015.  The VW certification follows the union's loss of a representation election in February of this year.

Under Section 9(c) of the National Labor Relations Act, a union is precluded from seeking an election in the same unit subject previously to an election which the union lost for a period of one year from the date of the election.  The UAW and VW entered into a 22 page Agreement for Representation Election which provided that if the UAW did not receive a majority of the votes, it would discontinue all organizing activities at the plant for one year.

At the present time, the union's status could be viewed as that of a minority union.  The unions have tried unsuccessfully to have the NLRB engage in rule making that would obligate an employer to bargain with a minority union.  The NLRB's current position is that based on the legislative history and language of the statute and the Board and U.S. Supreme Court decisions interpreting the statute, an employer has no statutory obligation tor recognize and to bargain with a union seeking to bargain as a minority representative.

So what is the effect of the certification under the VW policy?  The effect is to start dealing with the UAW in the context of a workers council which is what both the company and the union wanted before the representation election.  It will start the process where VW be in a position to voluntarily recognize the union without an election based on a showing of interest.  The company and the union realize any recognition will be challenged so they are proceeding in a way they feel provides the best defense to the inevitable challenge of the inevitable recognition.

It has been suggested that the VW organizing efforts will be a template to use throughout the South and supports the argument that the union's strategy is working.  These observations fail to fully take into account the unique situation at VW.  The Tennessee plant is the only non union VW plant worldwide.  There has been a great deal of pressure placed on the company by its other unions to recognize the UAW.  VW publically stated that it supported the establishment and operation of a work council at its plant.

VW agreed in the election agreement with the UAW refrain from making any negative comments against the UAW. (p.13)  The company also stated that it has informed the workers at its plant that it believes the establishment of a works council at the plant modeled on those at plants in Germany was in the common interest of the company and its employees.  It allowed the UAW access to the plant and provided for the union's use of a room for meetings with employees and to arrange for UAW representatives to be present at company conducted employee meetings. 

It is highly unlikely other foreign auto manufacturers with plants in the South will enter into similar agreements or to convey the same message as VW that they hope the employees will select a union to represent them.  In truth, the VW representation is an anomaly.  The UAW's Southern strategy, to the extent it showcases whatever develops with VW, may well be "See, we're not so bad."  Success at VW is not a guarantee of future success.

Tuesday, December 9, 2014

Michigan's Religious Freedom Restoration Act: heading for righteous trouble?

It was anticipated that this lame duck session of the Michigan legislature would see a bill to amend the state's civil rights act to add protection to prevent discrimination based on an individual's sexual orientation and gender identity, and a bill modeled after the federal religious freedom restoration act.  The Republican speaker of the House supported the expansion of the civil rights act to bar discrimination based on sexual orientation but opposed extending coverage to cover transgender individuals.  A bill introduced by Democrats to protect LGBT individuals apparently has died in committee.

The proposed religious freedom restoration act, however, was passed by the house and moves on to the state senate.  The purpose of the proposed legislation, according to the legislative analysis is to limit governmental action that substantially burdens a person's exercise of religion and allows the person so affected to assert such burden as a defense.  The proposed bill defines "exercise of religion" as the practice or observance of religion, including an act or refusal to act, that is substantially motivated by a sincerely held religious belief, whether or not compelled by or central to a system of religious belief.  One goal of the house speaker was to provide a legal framework wherein an employer could not fire someone who is gay or deny them service unless the service involves a form of religious expression.

While it is likely the bill will be passed by the Republican controlled senate, it remains to be seen if Governor Snyder will sign it.  With the bill to expand coverage of the civil rights act now dead, there is the potential for the religious freedom restoration act to be used as a defense to actions challenging alleged discrimination based upon sexual orientation and gender identity.  One outcome of the bill's passage would be litigation to define its parameters.

As employers watch the legislative process unfold, they would do well to remember that the EEOC filed once of its first lawsuits challenging transgender discrimination under Title VII in Michigan.  The enactment of the bill would truly only be the beginning of a potentially very contentious era of litigation.  Such litigation will attract national attention.

Tuesday, December 2, 2014

The EEOC and wellness programs: coming home to roost?

On May 8, 2013, the EEOC conducted a meeting and received testimony from a broad spectrum of advocates on the topic of the interplay between the wellness programs and federal anti discrimination laws.  The headline of the press release concerning the meeting stated Employer Wellness Programs Need Guidance to Avoid Discrimination. 

In 2014, no guidance was forthcoming from the agency, but lawsuits were.  The agency sued Orion Energy for requiring an employee who refused to participate in the wellness program to pay the entire cost of her health benefits and then firing her. The agency sued Flambeau, a plastics company, for requiring an employee who did not complete the biometric testing and health risk assessment to pay the entire premium of his health coverage.  Finally, the agency sought a TRO against Honeywell to stop the company from forcing the company to require employees to undergo biometric testing or risk the loss of the employer's contribution to the employee's HSA coupled with a $1000 tobacco charge.  The company responded to the lawsuit by criticizing the EEOC for failing to understand the Affordable Care Act. ("ACA")  The request for the TRO was denied.

The agency announced that it would be issuing a proposed rule to amend the regulations to implement the equal employment provisions of the ADA to address the interaction between Title I of the ADA and the financial inducements and/or penalties as part of wellness programs offered through health plans.  The announcement coincided with a letter to the Secretaries of Labor, Treasury, and Health from the Business Roundtable asking them to intervene to stop actions by the EEOC against employers implementing wellness programs in accordance with the ACA.  One potential response is for the members to back off of their support of the ACA and possible to assist in challenges to the law.  Representatives of the group will be meeting with President Obama today at the White House.

The EEOC's inaction in offering guidance and action in filing suits has led to the current climate of concern and anger by employers.  In spite of recognizing the need for guidance in May of 2013, that guidance will not be coming until next year.  If the agency's strategy was to use litigation to establish the boundaries of what is "voluntary," it misjudged the business community's reaction to the approach. It appears that the EEOC knows what it thinks "voluntary" means, it has not shared its understanding except through litigation.  Employers are now sharing what they think of the agency's approach.

Monday, November 24, 2014

A Whistleblower's Odyssey in Michigan

Bruce Whitman was the police chief for the city of Burton.  His odyssey began in 2007 when he was not reappointed as the  police chief in November of 2007.  He filed suit under Michigan's Whistleblowers Protection Act alleging that he engaged  in protected conduct in 2004 for opposing an ordinance where appointed officials agreed to give back unused personal time to help the city during a budgetary crisis, and his conduct led to the decision not to reappoint him. 

A jury found in his favor, but the court of appeals reversed on the basis that the primary motivation was the chief's personal interests and not one to protect the public good as required under the statute.  The Michigan Supreme Court reversed the court of appeals and held that motivation is not a relevant inquiry and remanded the case for a determination of the issue of motivation.  On remand the court of appeals again held against the chief focusing on the statute which the chief sought to enforce and held that the chief's efforts under the statute harmed the public good.  The panel majority also found that the chief failed to prove causation.  Not surprisingly, the chief again sought leave to appeal with the Michigan Supreme Court.

The Michigan Supreme Court vacated the court of appeal's decision and remanded the case to the court to consider the Court's opinion in Wurtz v. Beecher Metropolitan District, 495 Mich. 242 (2014).  In Wurtz, the Court once again identified the three part causation test of the statute.  It went on to hold that the statute did not apply to a contract employee seeking a new term of employment or to job applicants or prospective employees. 

So, does the chief finally win?  Probably not without a trip back to the Michigan Supreme Court.

The panel majority had already found there was no causation.  What will the impact to the direction to reconsider the case in light of Wurtz?  Whitman was an administrative officer appointed by the mayor.  The city's charter states that such officers serve at the pleasure of the mayor for indefinite terms, except that the mayor shall reaffirm or reappoint the administrative officers within 30 days of his election.  The mayor did not reappoint Burton.

How does Wurtz impact the case?  An argument can be made that an administrative officer is similar to a contract employee.  The failure to reappoint is similar to the failure to enter into a new contract.  If that analogy is correct, Whitman was not covered by the statute. 

It may well be that the panel majority reaffirms its position that there was no causation.  It is very possible however that the panel majority applies Wurtz and finds Whitman was not covered/protected by the act.  It is likely Whitman's odyssey will continue.

Tuesday, November 18, 2014

LGBT legislation in Michigan

A bill was introduced in the Michigan House last week which would amend the Elliott-Larsen Civil Rights Act to prohibit discrimination based on sexual orientation.  The legislature is in its post election lame duck session, and the bill was introduced by a representative who lost in the primary election.  The bill would add sexual orientation to the protected classes set forth in the statute.  It would define sexual orientation as having an orientation for heterosexuality, homosexuality, or bisexuality or having a history of such orientation or being identified with such an orientation.

A controversy has developed because the bill did not include protection for transgender employees.  Democrats and LGBT advocates are taking the position that the bill should be defeated.  Transgender employees would still be subject to discrimination.  Or would they?

The EEOC recently filed a lawsuit against a Detroit based funeral home.  It was one of two lawsuits filed by the EEOC in an attempt to use Title VII of the 1964 Civil Rights Act to challenge transgender discrimination.  The complaint alleges that the funeral home fired a transgender woman because of sex and failed to provide females with work clothing while providing clothing to the male employees.

Specifically, the complaint alleges that when the employee told her employer and fellow employees that she was under going gender transition and intended to dress as a woman in appropriate business attire, the owner told her that what she was proposing to do was unacceptable and fired her.  The theory is that the employer engaged in sex discrimination because the employee is transgender and because she did not conform to the employer's gender-based preferences, expectations, and stereotypes.

While the proposed Michigan amendment does not include protection for transgender employees, the EEOC has taken the position such discrimination is prohibited by Title VII.  The theory is based in part on the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins that discrimination based on sexual stereotypes is prohibited under Title VII. The lawsuit which is one of the first filed shows the EEOC is serious in its position. The answer to the question of whether the approach to LGBT protection  should be "all or nothing" will be known in the coming weeks.

Monday, November 17, 2014

The UAW and VW: You can't always get what you want..

But if you try sometimes you find you get what you need.  The Rolling Stones, 7/69

VW announced the creation of a policy at its Chattanooga plant dealing with the ability of employees to form groups and to have those groups deal with plant management.  The Community Organization Engagement policy establishes different levels of engagement depending upon how many employees are members of the group.

An organization that has 45% or more of the employees as members is entitled to: use the conference center during non work times; invite external representatives to come in once a month; post on a dedicated posting board; meet bi-weekly with plan HR; and meet monthly with the plant executive council.  The policy identifies thresholds of 15%, 30%, and 45%.

The policy establishes a procedure for determining the level of employee participation. An organization must provide a list of enrolled members for verification along with a written certification that it has signed individual membership authorizations for each member listed.  The information is submitted to an independent external auditor which will verify the list by checking it in either in full or taking a representative sample against the active employee roster.  Whether a group has a membership will be determined based on the total, active headcount in the relevant employee group--hourly, salary, or both--depending on the group's stated scope. VW will then be notified only of the % support without any individual account information being provided.

The UAW local sent a letter to its members last week that it will work with the company to verify its membership level which in excess of the majority of the workers of the plant.  According to the policy, it cannot be used by any group to claim or to request recognition as the exclusive bargaining representative of any group of employees for collective bargaining.  Any group requesting recognition as the exclusive bargaining partner must fully comply with the National Labor
Relations Act and do so in accordance with its provisions and practices.

To those familiar with the NLRA and the recognition procedure, the policy sounds an awful lot like a card check procedure.  On its website, the NLRB has a page dealing with elections.  It identifies a procedure that is an alternative to the Board conducted election.  That procedure allows an employer to recognize a union "after showing majority support by signed authorization cards or other procedure.

So, what is the impact if the UAW invokes the procedure and the external auditor finds that the UAW represents a majority of the employees in a unit of plant production employees which is identified by the union as the stated scope of participation?  The procedure looks like an "other procedure"  for recognition.  The provision of the policy dealing with recognition that a party seeking recognition must comply fully with the provisions and practices of the NLRB;  voluntary recognition after a showing of majority status, as recognized on the NLRB's website, has long  been recognized by the NLRB.  The policy looks like a way to end the plant's status as the only non union VW plant in the world.

Sunday, November 9, 2014

Employer loyalty: baseball style

Employee loyalty begins with employer loyalty.  Your employees should know that if they do the job they were hired to do with a reasonable amount of competence and efficiency, you will support them.  Harvey Mackay

Imagine that you are an executive who just completed your first year on the job.  At your evaluation, you were praised for the work you did and discussed plans for the upcoming year.  Now imagine that less than three weeks later, you are told that you are being replaced and are offered another job in the organization.  It seems that the company found someone who it believed could do your job better.  Now you understand what "at will" employment really is.

You now can understand how Rick Renteria, the former manager of the Cubs, feels.  Theo Epstein, president of the Cubs acknowledged that the Cubs faced a dilemma:  loyalty to the individual or to the organization.  Because Joe Madden was suddenly available as a manager and presented a unique opportunity for the club, Epstein said that the organization as priority over any one individual.

Employers are often dismayed when employees suddenly leave without much notice and are not available to transition another employee who fills the position.  The workplace today is different than in the days when there was a true sense of loyalty.  No doubt the Renteria firing has had an impact on other Cub employees and employees in general.  Workers are more mobile and connected and aware of opportunities.  Loyalty is a two way street, and so is opportunity.  It is the reality of the workplace today.  The Cubs just reminded us again.