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Back in December, this blog discussed how the National Labor Relations Board (NLRB) found Wal-Mart’s employee intimidation practices illegal. This includes firing and harassing employees who spoke against its exploitation and went on strike. As a result, the NLRB planned to go ahead and prosecute the company’s actions, which affected 117 workers across the country.

immigration-rally-1-520992-m.jpgRecently the NLRB took further action, issuing a complaint against Wal-Mart in 14 states for violating labor laws by taking actions against workers who went on strike. Wal-Mart representatives reportedly appeared on television and other media, threatening retaliation for the workers’ actions, and then disciplining or firing workers for striking, despite it being a legally protected activity. The complaint specifically cites more than 60 Wal-Mart supervisors, as well as a corporate officer.

The complaint was filed after an initial NLRB investigation found that the charges against Wal-Mart had merit. The parties involved attempted a settlement, but it fell apart, prompting one of the NLRB’s regional directors to file. The states involved in the complaint include Kentucky, as well as California, Texas, and Washington.
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The Seventh Circuit Court of Appeals recently became the first federal Court of Appeal to deny employers an affirmative defense that they have often used in lawsuits involving the Equal Employment Opportunity Commission (EEOC): the EEOC failed to conciliate prior to the lawsuit.

handshake-671413-m.jpgIn EEOC v. Mach Mining, LLC, a case discussed a few months ago on this blog, female applicants to a mine located in Johnston City, Illinois claimed that they had not been hired solely because of their gender. They filed a charge of discrimination with the EEOC in 2008, and in late 2010, the EEOC informed Mach Mining that it intended to start the informal conciliation process. The parties discussed a resolution, but failed to make an agreement. The EEOC later told Mach Mining that the conciliation process had been unsuccessful, and proceeded to file a complaint in district court two weeks later. In Mach Mining’s answer, it cited several affirmative defenses, including that the EEOC failed to conciliate in good faith. The EEOC sought summary judgment on the matter, claiming that the conciliation process was not subject to judicial review. The district court denied summary judgment, claiming that conciliation efforts are subject to some level of judicial scrutiny, at least to see whether good faith efforts were made. The EEOC then appealed its case to the Seventh Circuit.

The Seventh Circuit ultimately reversed the district court’s summary judgment ruling. In doing so, the court looked at the following: whether language in Title VII allowed EEOC conciliation efforts to be reviewable; whether a statutory standard for the conciliation process existed; whether judicial review would undermine the conciliation process; and whether it was proper for employers to shift the focus from their actions to the pre-litigation practices of the EEOC.
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Indiana’s Attorney General Greg Zoeller has requested that the Indiana Supreme Court reverse a trial court decision that nullified part of the state’s right-to-work law. Zoeller also requested that the Indiana Supreme Court affirm the Lake County Superior Court’s rulings on three other grounds that did not involve constitutional questions.

immigration-rally-1-520992-m.jpg“Right-to-work” does not refer to whether all able-bodied people have the right to a job. Instead, “right-to-work” laws allow employees who are not part of unions to be able to enjoy the benefits that union employees won through collective bargaining — without having to pay union dues or be bound by the collective bargaining agreement like union employees. “Right-to-work” laws are typically meant to weaken unions’ power, on the basis that fewer employees will want to join a union if they can get the same benefits without any sacrifices. Twenty-four states have enacted “right-to-work” legislation, including Indiana in February 2012.

However, in September 2013, a Lake County Superior Court judge found that the “right-to-work” law was unconstitutional. The case began in February 2013, when it was filed on behalf of members of the International Union of Operating Engineers Local 150 AFL-CIO. The case had originally been brought in federal court, with the instigators claiming that the “right-to-work” law violated the United States Constitution and the state constitution. The federal court dismissed it on the grounds that the case should be brought in state court. After the case was filed in state court, the Lake County Superior Court judge found the law to be unconstitutional because the Indiana constitution called for just compensation for services, and permitting non-union members to enjoy the benefits of union victories was not just compensation.
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Recently, the Kentucky Court of Appeals reinstated a gender discrimination case that had previously been dismissed by a lower court judge without trial.

gavel-5-1409595-m.jpgThe case involved a situation at Northern Kentucky University’s College of Business back in the early 2000s, where a female assistant professor sought to gain a promotion with tenure. Andrea Weickgenannt began as an accounting instructor at the university, before becoming a tenure-track assistant professor two years later. At the time, she was supposedly hired due to her valuable practical experience, which included employment at a major accounting firm and doing independent consulting, as opposed to her scholarship. Weickgenannt did not have a Ph.D.

The university’s Reappointment, Promotion and Tenure Committee recommended promotion with tenure, finding that the articles Weickgenannt had penned for scholarship were sufficient to meet the guidelines. Yet the dean and provost did not agree, finding that Weickgenannt’s scholarship work was not up to standard. After an unsuccessful appeal within the university structure, Weickgenannt then sued the university for gender discrimination. In doing so, she identified a male colleague in the Management Department who had been promoted with tenure the previous year, who had the same amount of peer-reviewed, co-authored articles as she did. Nonetheless, the lower court dismissed her claim.
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A Sixth Circuit Court of Appeals decision represents a victory for employees looking to unionize in Kentucky and other states in its jurisdiction.

nurseii-4-1158337-m.jpgIn Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB, the Sixth Circuit upheld a National Labor Relations Board decision allowing unions to organize in small units of employees. This is significant because if individual units of employees can be recognized as unionized, it will be easier to unionize a workplace than if all employees were required to vote.

Kindred Nursing Centers East, LLC operated a nursing home in Mobile, Alabama, which had no history of employee collective bargaining. The employees worked in eight separate departments, including nursing, nutritional services, resident activity, administration medical records, maintenance, central supply, and social services. In the nursing department were 53 Certified Nursing Assistants (CNAs), as well as Registered Nurses (RNs) and Licensed Practical Nurses (LPNs).
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Workers across the country, including in Kentucky and Indiana, organized to go on strike, this time to protest the low wages paid at fast food restaurants. The strikes come during a time when studies have shown that more than half of fast food workers make so little money that they use public assistance.

burger-1097100-m.jpgAlthough in Indiana the percentage of fast food workers on public assistance is less than 50% — 45% to be exact — the result still costs the state an estimated $131 million each year. Many workers hope to change that, such as Nicholas Williams, a cook at a McDonalds in Indianapolis. He notes that while McDonalds makes $6.5 billion each year, he makes only $7.35 an hour and cannot afford many basic things. He and others hope to see the minimum wage raised to $15 per hour.

Supporters state that when fast food workers make so little, it hurts their entire family, because the parents then need to work two or three jobs to support their families and are never home. Furthermore, these jobs typically lack health care that would benefit the family if someone got sick. In fact, forcing fast food workers to work all the time to make ends meet prevents them from participating in the community at large.
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The United States Supreme Court recently agreed to hear the case concerning whether corporate employers are required to provide free birth control, as mandated by the Affordable Care Act (ACA), even if their “consciences” do not support it. While religious institutions and non-profits are exempt from this provision, this case will test whether private corporations are “people” enough to have religious convictions that trump the needs of their employees. Oral arguments are expected to take place in March 2014.

cross-with-shadow-1-1356536-m.jpgThe Supreme Court agreed to hear the argument after the Circuit Courts of Appeal offered split decisions on the issue — including the Seventh Circuit in early November. In Korte v. Sebelius, a two-judge majority found that small, closely held corporations were “people” within the meaning of the Religious Freedom Restoration Act and were entitled to assert that the mandate substantially interfered with their rights.

The case involved two Catholic families with closely held corporations, one a construction company in Illinois and the other a manufacturing company in Indiana that produces automobile safety systems. Although the companies are both secular and devoted to earning profit, the Seventh Circuit still noted that they operated according to their owners’ Catholic beliefs. Therefore, the owners should not have to condone “abortion, sterilization, and the use of abortifacient drugs and artificial means of conception.”
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Right before the series of Black Friday protests conducted by Wal-Mart employees across the country, the National Labor Relations Board (NLRB) found that the retailer had broken the law when it fired and harassed employees who spoke up against company exploitation and went on strike. As a result, the NLRB will prosecute Wal-Mart’s actions, involving 117 workers, which include the workers who went out on strike this past June. It is expected that the NLRB’s ruling will increase the likelihood of strikes in the future, given that Wal-Mart employees by and large still must contend with low pay, few benefits, and unpredictable work schedules.

immigration-rally-1-520992-m.jpgThe NLRB ruling may require Wal-Mart to reinstate the dismissed workers and provide them with back pay, as well as to inform employees of their full legal rights. However, the NLRB cannot impose fines on companies that violate these rights. Among those who have already been reinstated are Aaron Lawson of Kentucky, who was initially fired for distributing flyers and protesting Wal-Mart’s efforts to silence employees who sought better wages and hours. Wal-Mart finally reached a settlement with Lawson, where the retailer agreed to rehire him with full back wages representing the time he was out of work. The NLRB had also previously decided to prosecute Wal-Mart for violating federal labor laws 11 times in California, when managers made threats to employees around Black Friday.

The above intimidation is just part of a long pattern of Wal-Mart indifference toward worker protections and hostility toward worker activism, which includes breaking the law by retaliating against protest activities, paying female employees less for doing the same work as male employees, violating environmental laws, and exploiting immigrant labor.
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It is becoming a more common practice for employers to insert arbitration clauses into contracts for employment. Arbitration clauses specify that if an employment dispute arises, rather than go to court, the employer and employee agree to arbitration in a designated forum. Arbitration proceedings tend to be less formal than court proceedings, but also have fewer safeguards – the arbitrator may not necessarily be a judge or a lawyer, and may not necessarily abide by the prevailing law in coming to a decision. Once a ruling is made, it can be difficult to appeal to the trial court, and the employee may be stuck with the decision. That is a problem because more often than not, employers get to choose the arbitration firm, and the firm may show a bias toward employers in order to get repeat business.

clothing-1336617-m.jpgUnfortunately for employees looking to sue in court, the United States Supreme Court has held that the Federal Arbitration Act of 1925 supercedes state laws that mandate certain grievances be litigated in court. The only exceptions that state courts have been able to carve out have had to do with the “unconscionability” of the arbitration clause — that the clause was both an unfair surprise and incredibly oppressive to one of the contracting parties. Yet too often arbitration clauses are upheld, cutting off employees’ options for redress.

Recently, the Sixth Circuit Court of Appeals held that another employee was bound by the arbitration clause in Tillman v. Macy’s, Inc. Cecilia Tillman was an employee of May’s Department Store in 2005, when May’s merged with Macy’s and she became a Macy’s employee. After the merger, Macy’s premiered its Solutions inSTORE program, which outlined a four-step dispute resolution process that ended with binding arbitration for both Macy’s and the employee. Any employee who participated in the program waived his or her right to file a lawsuit in court. Macy’s claimed that it explained the policy in a mailing and during a video training, and employees had the right to opt out if they filled out a certain form. Tillman attended the training, but argued that Macy’s “breezed over” the information about mandatory arbitration. She further argued that merely continuing to work as an employee of Macy’s should not constitute a waiver of her right to file a lawsuit in court.
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Recently, 11 former employees of DHL Global Mail in Kentucky, and soon as many as 24 total, filed complaints with the federal Equal Employment Opportunity Commission (EEOC), claiming that they were fired for praying on the job. All 24 employees are or were Muslim immigrants from Somalia. The employees filed under Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act, requesting damages, reinstatement where appropriate, and policy changes.

salat-ied-115358-m.jpgThe problems began this past October, when there was a change in office policy that removed the flexible break policy that had been in place. The DHL Muslim employees had used that time to step out of the office and pray. Once the policy was reversed, however, the employees had no options, and ended up voluntarily taking time off of the clock. The 24 Muslims who worked in the mail room stepped outside at 7:24 p.m. and gathered to pray, separated by gender. The supervisor then called three of the employees in for an explanation, later calling the police to ensure that the employees left without causing a scene.

Under Title VII of the Civil Rights Act of 1964, a number of classifications are protected from discrimination, including race, national origin, color, gender, and religion. Employers are required to reasonably accommodate an employee’s religious beliefs or practices unless doing so would pose “more than a minimum burden” on the business. Among the examples of reasonable accommodations that the EEOC lists are flexible schedules, voluntary shift substitutions, job reassignments, and modifications to workplace policies.
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