The National Labor Relations Board (“NLRB”) is presently wrestling with a particularly important legal issue that has nothing to do with union elections or unfair labor practices. The matter facing the NLRB is much more rudimentary than that – when should NLRB members be recused based upon a conflict of interest. Not to belabor the point (pun intended), but it is critical that NLRB members be able to rule on legal issues presented to them. If matters taken to the NLRB are frequently subject of conflict concerns, the system slows and the wheels of justice do not turn.
Last week, the Third Circuit released an opinion in Minarsky v. Susquehanna County, et al., in which it reversed the district court’s award of summary judgment to Susquehanna County and remanded the case for a jury trial on the merits. What is significant about this opinion is the impact that the #MeToo movement has seemingly had on the decision. In a page-long footnote, the Court discusses the #MeToo movement, the pervasiveness of sexual harassment in the workplace, and comments on why sexual harassment victims may not, even with proper mechanisms in place, reasonably be willing to report harassment.
Public Employees Have The Right To Refrain From Union Membership and Compelled Union Dues
In a 5-4 ruling split evenly along party lines, the United States Supreme Court bolstered the right of public sector employees to abstain from union membership and compulsory dues payment. The ruling in Janus v. AFSCME provides that public sector unions cannot require employees to pay dues and fees associated with the negotiation of labor agreements and administration of grievances under such agreements, although those employees will be covered by the bargaining agreement. Public sector employers have been a final stronghold of the American labor movement. While only 6.5% of private sector employees are unionized, unionization of public sector employees is currently 34.4%. To put public sector’s union activities into context, of the $64.6 million spent by these unions during the 2016 election cycle, 90% of those funds went to Democratic candidates.
It’s not uncommon to make a job offer conditional on the results of a pre-employment background check. But, how often do you deny an otherwise good job applicant a job because something unexpected came back in the background check? How do you go about informing this applicant—who you told had the job (subject to the results of the background check)—that he or she is now not going to be considered for employment?
One of the more difficult issues in Workers’ Compensation law in West Virginia is whether idiopathic injuries are considered compensable injuries for workers’ compensation purposes. This subject continues to provide ample opportunity for litigation as private insurers, self-insured employers, and third-party administrators continue to reject workers’ compensation claims that result from an injury of no known cause that occurs while at work. An example of this type of injury is an employee who is simply walking at work and either suffers a knee injury or an ankle injury unrelated to any type of accident or incident. Sometimes the injury results in a fall and sometimes it does not (and these facts must all be considered carefully). In recent decisions, the West Virginia Supreme Court of Appeals and the West Virginia Workers’ Compensation Insurance Commission Office of Judges have attempted to clarify the state of the law in regard to these issues. However, it does appear that the state is moving towards a general rule that provides that idiopathic injuries that occur at work will be considered compensable. These types of situations are very factually driven, so it usually is a good idea for employers and claims administrators to obtain as much factual and medical information as possible from the time of the initial report of injury to make sure that nothing outside of the scope of work, including a pre-existing medical condition, could have caused the injury.
On June 8, 2018, the Business Liability Protection Act (a.k.a “the Parking Lot Gun Bill”) goes into effect and creates a series of new standards which prohibit employers from maintaining or establishing “no firearms” policies in vehicles on company-owned parking lots and property where vehicles are parked.
Despite the “#MeToo” Movement, it’s still not uncommon for workers to make comments concerning a co-worker’s sexual practices. Nor is it uncommon for employers to successfully defeat sexual harassment claims based on such conduct by citing the well-established case law that discrimination statutes do not mandate a pristine work environment – shop-talk is not actionable.
On May 21, 2018, the United States Supreme Court issued a decision holding that class action waivers in employment arbitration agreements were valid and enforceable in the face of a challenge under the National Labor Relations Act (“NLRA”), resolving a significant disagreement among lower federal courts. By way of background, the Federal Arbitration Act (“FAA”), passed in 1925, provides for enforcement of agreements between parties to resolve disputes through private arbitration, rather than in court. Under the FAA’s “savings clause,” arbitration agreements may generally only be voided under traditional contract principles (for example, in cases of duress or unconscionability).