In union organizing campaigns, however, I always argue that this rigid agreement can have unintended consequences that may be less than desirable for the employees.  In other words, giving employers the flexibility to treat different situations differently can actually be beneficial for employees.

In this case, the collective bargaining agreement provides for nine days of paid leave, which the employee had already exhausted.  She asked for three additional paid days to visit with her step-son who is returning from battle, and she was denied her request.  The school district’s stated reason for denying the request is that the CBA did not provide for any additional paid leave.

Let me absolutely clear about one thing – the stated purpose for this leave is something upon which we should place significant value and honor.  If there is a way this employee could be permitted to take time for this purpose, it would benefit all to seek it.

Let me also be clear about one other thing, though – the requested leave could not just be given by the district without causing the district to violate the law.

If the contract provides for a fixed number of paid leave days, then giving any more would be an illegal unfair labor practice just as it would be so to permit fewer.  If there is a bad guy here, it is not necessarily the district.  The problem here is that the rigidity ensured by a collective bargaining agreement is just that – rigid.  Employees and unions need to remember that this goes both ways.

Now, are there ways to accomplish this leave?  Sure.  Some exception could be carved out with permission of the union AND the board, but again that is not a decision that the board is permitted to make.  Also, there likely would be unpaid leave available pursuant to recent amendments to the FMLA.

While I absolutely sympathize with the difficulty created for this employee by the collective bargaining agreement in effect, it is important to understand the source of problems like the one here – it is the rigidity of the CBA, rather than intentionally unwilling employers.

NOTE:  My analysis is based, of course, on the facts as reported in the article, and I have not conducted an independent review of the CBA at issue.

Today, I will highlight the first of several notable rule changes, to explain why I say that.  Let’s look first at the proposal to require pre-election hearing position statements.

Currently, when a union or a group of employees files an election petition with the NLRB, seeking to be recognized as a union, the Board will schedule a hearing to determine a number of threshold issues, such as the appropriateness of the unit (e.g. which job classes should be put together in the same unit).  Prior to the hearing, neither party knows much if anything about what the other is going to be arguing as it relates to these threshold issues.

Under the proposed rule, the Employer would be required to file a Position Statement identifying its position on a number of relevant issues.  The NLRB would be charged with adopting a standard form that would be completed by the Employer to accomplish this.  The Employer Position Statement would be required to:

• State the name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer.
• State whether the employer agrees that the Board has jurisdiction over the petition
• Provide the requested information concerning the employer’s relation to interstate commerce
• State whether the employer agrees that the proposed unit is appropriate
• If the employer does not agree that the proposed unit is appropriate, state the basis of the contention that the proposed unit is inappropriate, and describe the most similar unit that the employer concedes is appropriate
• Identify any individuals occupying classifications in the petitioned-for unit whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention
• Raise any election bar
• State the employer’s position concerning the type, dates, times, and location of the election and the eligibility period
• Describe all other issues the employer intends to raise at the hearing.
• Full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing
• If the employer contends that the proposed unit is inappropriate, the employer shall also state the full names, work locations, shifts, and job classifications of all employees in the most similar unit that the employer concedes is appropriate.
• The list of names shall be alphabetized (overall or by department) and be in an electronic format unless the employer certifies that it does not possess the capacity to produce the list in the required form.
• Copy of Employee List, as delivered to NLRB, also must include the employees’ available telephone numbers, available email addresses, and home addresses.

Some of this information already is required in one form or another, but other bits of information (employee telephone numbers and email addresses, for example) are not currently required to be disclosed.  Sharing this information with the union makes it that much easier for the union to contact (i.e. campaign to) employees, even when employees do not wish to have such information shared.

Additionally, the Employer currently is not required to provide such detail as work locations, shift assignments, and job classifications for employees.  Giving unions this level of detail allows them to prepare better for any organizing efforts.

Note that Unions also would have to file a Position Statement in the event the Petition was filed by the Employer.  In that case, a Union’s Position Statement must include:

• The name, title, address, telephone number, fax number, and email address of the individual who will serve as the representative of the individual or labor organization and accept service of all papers
• All issues the party intends to raise at the hearing.

Clearly, full disclosure is not a consistent goal of the proposed rules.

In future posts, I’ll discuss more of these proposed rule changes that would make it easier for unions to organize.

The President, with much fanfare Wednesday, made a “recess” appointment for the head of the new Consumer Financial Protection Bureau. (I put the term “recess” in quotes, because there appears to be some controversy about whether or not the Senate, which normally must approve of such appointments, was actually in recess).  With much less fanfare, though, Obama appointed three new members to the five-seat NLRB. The Board had two vacancies already, and a third vacancy was created when one member’s term expired at the end of 2011. With only two members on the 5-member board, no action could be taken.

Republicans in Congress seemed content that this Board could not act, but the appointment of three new members makes it not only possible that the Board will be able to act but also likely that it now will have enough votes to enact new union election rules that have been proposed, to union elections faster and easier for unions.

I will continue to monitor the status of those rules, which I will explain in more detail in a future post. Stay tuned, folks!

This “but for” standard is more difficult for a plaintiff to show than the “substantial and motivating factor” standard other discrimination plaintiffs must show in claims brought under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of gender, race, religion, national origin, etc.  Under the “substantial and motivating factor” test, a plaintiff need only show that the protected class was a substantial and motivating factor – even if not the only factor – that led to the adverse action.

To address the different standards found in Title VII and in the ADEA, some Members of Congress have introduced HR 3721, which would be known as the “Protecting Older Workers Against Discrimination Act” (POWADA).  This bill, if passed, would amend the ADEA to provide that a plaintiff can recover in an age discrimination claim if he or she can show that age was a “motivating factor for the practice complained of, even if other factors also motivated that practice.”

President Obama made it clear that his legislative agenda included amending various employment laws to assist plaintiffs in making these types of claims, and the Administration already can take credit for one new law that overturns recent Supreme Court precedent in the area of discrimination, so it would make sense that this bill could see some support.  It is too early to tell right now, though, so I will continue to keep you posted.

The new provisions that were signed into law by President Obama this week further to expand the number and type of circumstances in which FMLA leave can be taken for military related reasons.

Employers should be sure that their FMLA policies are up to date to reflect these new military leave requirements.

In the case of Busch v. Marple Newtown SD (June 1, 2009), the Court ruled, essentially, that a district has a great deal of control over the speech that is permitted in that type of forum.  As the Courts have said before,

Unlike parks, streets, and other traditional public fora, elementary school classrooms are not places for unlimited debate on issues of public importance.  Most of the time, school classrooms are reserved for teaching students in a structured environment.  Public schools may take on characteristics of public fora by “intentionally opening” facilities for “public discourse.” But in classrooms, during school hours, when curricular activities are supervised by teachers, the nonpublic nature of the school is preserved.  Speech occurring during these activities may be regulated under standards different from those that would apply in public fora. (citations omitted).

The Court also recognized, though, that age and context matter in determining what kind of control the district can retain.  In other words, the question of whether or not a forum has been opened to general debate or dialogue may be answered differently at the elementary level than at the secondary level, for example.

In this case, then, the Court ruled that the district could exert a great deal of control over speech in the kindergarten classroom, even though they did invite other parents to come into the classroom to speak to the class about each child’s interests.

It is important to note, though, that the Court in this case permitted the district to exercise rather significant discretion in determining what to allow and not allow.  For example, once Wesley had chosen the Bible as the favorite book that he wanted his mother to read for his “All About Me” presentation, Mrs. Busch selected a few verses from Psalm 118.  The Court noted the following:

[Mrs. Busch] selected verses 1 through 4 and verse 14 of Psalm 118 from the King James Bible:

1 Give thanks unto the Lord, for he is good; because his mercy endures forever.
2 Let Israel now say, his mercy endures forever.
3 Let the house of Aaron now say, that his mercy endures forever.
4 Let them now that fear the Lord say, that his mercy endures forever.
* * *
14 The Lord is my strength and my song, and is become my salvation.

Busch testified she chose these verses because (1) she and Wesley frequently read from the Book of Psalms; (2) she thought the children would like Psalms because they are similar to poetry; and (3) she desired a reading that did not make reference to Jesus, which she worried might upset some people given what she perceived in the past as hostility in the school district towards her Christian beliefs. She also testified that she intended to read the verses to the students without explanation and that, if asked questions about the reading, she would respond that “it was ancient psalms and ancient poetry and one of Wesley’s favorite things to hear.”

Additionally, the Court found as a matter of fact that

Other parents also participated in their children’s “All About Me” weeks by reading stories to the class, sharing snacks, and doing crafts. Among the stories read by parents were: The Grinch Who Stole Christmas, The Jolly Roger, and Green Eggs and Ham. Reilly also keeps a library of books from which she periodically reads to Wesley’s class. Among those books are several about holidays, including: Bear Stays Up for Christmas, Froggy’s Best Christmas, The Wild Christmas Reindeer, Ten Timid Ghosts on a Christmas Night, Christmas Trolls, The Best Easter Eggs Ever, Easter Bunny’s On His Way, The Night Before Easter, Hooray for Hanukkah, The Magic Dreidels, and The Hanukkah Mice.

Additionally, one parent, Linda Lipski, visited Reilly’s [the teacher's] class twice during the year to give presentations on Hanukkah and Passover that were planned in advance with Reilly. During Hanukkah, Lipski brought in a menorah and a dreidel and read “a Blue’s Clues Hanukkah story.” Later in the year, during the Passover holiday, Lipski “read The Matzoh Ball Fairy to the students and then offered them matzoh ball with chicken soup.” Reilly set up Lipski’s presentation by discussing Easter and Passover. She also discussed Christmas and Kwanzaa as part of the winter holiday unit in the social studies curriculum, and recalled a picture of a Christmas tree hanging in the classroom at the time of the Hanukkah presentation.

Presumably, the only distinction that the District could make between those permitted books and the Bible was that the Bible is considered to be scripture and, therefore, presumably could be considered proselytizing.  Despite opening the classroom forum for those books, though, the district was found to be acting within its discretion to limit the Bible reading.  This reflects the Court’s view that the mother’s free speech rights were so limited in that classroom that certain speech could be prohibited while other non-school-sponsored speech was still permitted.

The mother has indicated that she may be considering an appeal to the US Supreme Court, which is not obligated to hear the case.  Unless and until the Supreme Court reverses this decision, schools have a great deal of discretion, I believe, in regulating speech in this context.  As with all of these types of freedom of speech cases, each situation is very fact dependant, and you should consult legal counsel when making decisions like this.

The new Bill, PA House Bill 300, would add sexual orientation and gender identity or expression to the protected classes.  Currently, neither PA state law nor federal anti-discrimination law prohibit discrimination on these bases.  Just under half of the states, however, include some protection for sexual orientation and/or gender identity.

The new law defines the term “sexual orientation” as “actual or perceived heterosexuality, homesexuality or bisexuality.”  The term “gender identity or expression” is then defined as “actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.”

Just like the rest of protected classes already addressed by the law, this change would apply to discrimination in employment, housing and public accommodations.  It would not have any formal impact on other types of rights, such as the right to marry, etc.

The definitions are obviously rather broad, however, and could serve to expand significantly the scope of the Act.  Time will tell whether there will be support for the legislation, which was narrowly approved by the House State Government Committee and now is before the Appropriations Committee.  Stay tuned for more updates, as this bill moves its way through the General Assembly.

President Obama kept that promise, when he signed his first piece of legislation this week, the Lilly Ledbetter Fair Pay Act of 2009 (named for the plaintiff in the case he sought to overturn).  The new law declares that discriminatory pay arrangements are to be considered continuing violations that occur each time the employee receives his or her pay.  This makes it much easier for plaintiffs to meet the statute of limitations.

In her case against her former employer, Ms. Ledbetter claimed that, some time ago, she was given an unfairly low salary.  She alleged that the violation occurred each time she got a paycheck that was lower than what she claimed it should have been, meaning that she could file a claim any time within 180 days of receiving one of the paychecks.  Instead, the Court found that the alleged discrimination occurred when she originally was given a lower salary, meaning that her claim had to be filed within 180 days of that original event or was lost forever.

The fact that this was President Obama’s first bill signing means little or nothing from a legal perspective, but it does perhaps signal the new administration’s focus on expanding worker rights.  Only time will tell whether or not the next four years will continue in that direction.

This was a trial court decision, so I am expecting that there will be an appeal to the Circuit Court.

This result likely is based on the actual language of the statute itself, so it is difficult to say how another Court would interpret another statute that provides for a moment of silence.  In the meantime, districts should continue to consult with counsel regarding these issues, as there can be many variables that influence a decision like this.

The parents in the case had asked the United States Supreme Court to review the decision, and this week the US Supreme Court denied that request (see the Court’s Order here – this case of Combs v. Homer Center S.D. is mentioned on page 11).  This essentially ends the dispute with respect to the federal constitutional claims.  In other words, the religious freedoms guaranteed by the First Amendment to the US Constitution do not exempt parents from compliance with the PA home school law and its requirement that the parents provide some evidence to the public school district that some appropriate education is in fact occurring.

There still are some state court claims that remain alive, however.  Specifically, the parents also claimed that a Pennsylvania statute known as the Religious Freedom Protection Act (RFPA) provides the protection that the parents sought in this case.  This question was not addressed by the Third Circuit, which actually sent that question back to PA state Courts since the RFPA is a relatively new statute that PA Courts have not had much opportunity to consider yet.

This week’s decision by the US Supreme Court marks a significant win for PA school districts.  Soon, though, the next chapter will begin, as the battle turns to state court and the RFPA claims.