Hunton Employment & Labor Law Perspectives

UPDATE: NLRB's "Quickie Election" Rules Struck Down . . . But For How Long?

Hunton & Williams LLP — Wed, 16 May 2012 12:03:29 -0500

As noted yesterday in our post, the United States District Court for the District of Columbia’s decision to strike down the National Labor Relations Board’s “quickie” election rules was based on a highly technical analysis. Specifically, the Court found that the Board failed to obtain a proper quorum of at least three Board Members because of Republican Member Brian Hayes’ limited involvement in the rulemaking process. However, the Court indicated that the Board might have authority to issue the quickie election rules if it musters a legally recognized quorum.

In a press release issued by the Board late yesterday afternoon, the Board confirmed that possibility, noting that the Board was “temporarily” suspending the implementation of the quickie election rules while it considered the Court’s decision. The Board’s press release noted that the Board “continue[s] to believe that the amendments represent a significant improvement in [the Board’s] processes and serve the public interest by eliminating unnecessary litigation.” Board Chairman Mark Gaston Pearce went on to state that “we are determined to move forward.”

In light of the Board’s clear intentions to push forward with pursuing the quickie election rules, we continue to recommend that employers prepare for the impact that the new rules will have on their ability to effectively and quickly respond to union organizing campaigns and petitions for elections.

NLRB's "Quickie Election" Rules Struck Down....But For How Long?

Hunton & Williams LLP — Tue, 15 May 2012 10:48:16 -0500

Late yesterday afternoon, Judge James Boasberg of the U.S. District Court for the District of Columbia struck down the National Labor Relations Board's recently passed "quickie" election rule. The Board's rule, published in December 2011 and purportedly effective as of April 30, 2012, amended election case procedures to significantly reduce the time between the filing of a union election petition and the holding of a representation election.

In striking down the rule, Judge Boasberg held that the Board failed to obtain a proper quorum of at least three Board Members when it "passed" its rule in December 2011. During the final rulemaking process, Democratic Members Becker and Pearce voted in favor of the rule. The lone Republican member at the time, Brian Hayes, never voted on the final rule. Judge Boasberg ruled that Hayes' mere involvement in the rulemaking process -- during which he adamantly protested the proposed rule and voted against several draft versions that later were revised -- was not enough to count Hayes for purposes of finding a quorum.

The Court's decision may prove to be a hollow victory for the employer community. Judge Boasberg's analysis is highly technical. He did not address the Board's ultimate authority to pass rules amending the representation election process in the first place. Tellingly, however, he noted that the Board may indeed have the authority to pass its "quickie" election rule provided it musters a legally recognized quorum the next time around: "The Court does not reach -- and expresses no opinion on -- Plaintiffs' other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so."

With a full panel of five Members, three of whom are Democrats, the Board may well revisit its "quickie election" rule and pass it again, even if both Republican members refuse to vote. While the employer community likely would challenge that action on the grounds that at least three of the current Board members were not properly appointed, the rule is far from dead yet. Moreover, many of the Acting General Counsel's new election guidelines, which he detailed in a May 2012 memorandum to the Board's Regional Directors, do not necessarily depend upon the validity of the rule itself. Thus, if the Board is inclined to speed up the union election process, it can probably do so even without the rule. Accordingly, employers that have begun preparing for a new world of "quickie" union elections should not alter or abandon that preparation.

Those that have not should still consider making such preparations. We will continue to monitor this litigation and opine on its implications for the employer community as new developments emerge.

NLRB Prepared To Move Full Steam Ahead With "Quickie Election" Rules

Hunton & Williams LLP — Tue, 01 May 2012 09:07:50 -0500

As we reported earlier, the path appears (at least temporarily) clear for the NLRB’s new “quickie election” rules to take effect. In anticipation of the effective date, Board General Counsel Lafe Solomon last week issued a memorandum to all regional directors advising them on how to process union election petitions under the new rules. While it is too early to tell how dramatically the General Counsel’s guidance will alter the labor relations landscape, it is clear from his memorandum that the Board intends to accelerate the current union election timeline as much as possible.

As we reported in previous posts, the Board’s final rule, adopted on December 22, 2011, modifies in several substantial respects the procedures that govern the processing of union election cases. These include:

Limiting pre-election hearings to whether a question concerning representation exists;
Eliminating a party’s right to file a post-hearing brief and giving a hearing officer discretion whether to allow briefing on any pre-election litigation;
Requiring that parties consolidate their appeals of pre and post-election issues, which likely substantially limits pre-election appeals of hearing officer determinations;
Limiting interlocutory appeals to issues involving “extraordinary circumstances;”
Eliminating the rule that currently prevents regional directors from scheduling an election date any sooner than 25 days after ordering an election;
Making Board review of post-election disputes discretionary and allowing the Board to reject any appeal that does not present “a serious issue for review.”

Solomon’s memorandum reveals some -- but far from all -- of what the Board may be planning. For example, the memo suggests that the regions should schedule any necessary pre-election hearing no more than 7 days after a petition is filed. This is the hearing that the region in all likelihood will cancel if the employer does not present a viable question concerning representation. It also states a Board agent can dispense with a pre-election hearing if, in his or her judgment, the petitioned-for unit is “presumptively” appropriate under current Board precedent. Where a hearing must be held, Solomon directs Board agents to allow only evidence on issues that will be decided by the regional director. Parties will not be allowed to offer evidence on “nonlitigable issues.” In this regard, evidence on individual eligibility and inclusions issues will not be allowed unless offered to determine whether a question of representation exists.

Solomon’s memorandum suggests that the Board will take whatever steps it deems necessary to eliminate pre-election litigation and employer appeals and speed election petitions forward for a vote. That said, it remains unclear how these changes will work in practice. It is still possible that the D.C. Circuit’s planned ruling on May 15th will invalidate some of the Board’s rule changes. We will monitor closely the Court’s activity as well as the Board’s implementation of the new rules and will be following up in the days and weeks to come with additional commentary on the potential implications of the new rules.

Court Refuses to Enjoin NLRB "Quickie Election" Rules -- Rules Effective Today

Hunton & Williams LLP — Mon, 30 Apr 2012 08:51:11 -0500

The NLRB's "quickie election" rules will go into effect today, April 30, in light of a federal district court decision denying a Motion seeking an injunction against the rule becoming effective. The Court indicated that it would issue a written opinion before the date on which any election could be held under the new rules. Our calculation is that, at least for now, the minimum time necessary for an election to be held after the filing of a petition is 17 days.

The Court's Order reads: “As the parties discussed in a conference call with the Court at 5:00 p.m. on April 27, the Court ORDERS that Plaintiffs’ Motion is DENIED. Any injury to Plaintiffs is not irreparable because the Court will issue its Memorandum Opinion on the merits by May 15, which date will precede any potential election under the new rule. Signed by Judge James E. Boasberg on 4/28/2012.”

Federal Jury Returns Verdict For Tyson Foods In Wage Hour Class Action

Hunton & Williams LLP — Wed, 25 Apr 2012 15:47:05 -0500

A federal court jury returned a unanimous verdict in favor of Tyson Foods today in a Rule 23 class and FLSA collective action, alleging failure to pay overtime under state and federal law. Tyson was represented at trial by Hunton & Williams' lawyers Michael J. Mueller, Emily Burkhardt Vicente and Evangeline Paschal and local Baird Holm lawyer, Thomas E. Johnson.

Plaintiffs claimed that they were denied overtime compensation under the Fair Labor Standards Act, 29 U.S.C. s 201, et seq., and the Iowa Wage Payment Collection Act, Iowa Code Chapter 91A, for time spent on donning, doffing and related activities, before and after shift and at unpaid meal and rest breaks. The Court granted summary judgment to Tyson on Plaintiffs' meal and rest break-related claims before trial. The case then proceeded to a two and a half week representative proof jury trial. After the Plaintiffs rested their case, Tyson moved for judgment as a matter of law on Plaintiffs' claim that the Company had willfully violated the FLSA and Iowa law, a motion the Court granted from the bench.

After two days of deliberations, the jury returned a verdict for Tyson, finding that Plaintiffs had failed to prove their claims on a class-wide basis under the Portal-to-Portal Act and affirmatively finding that Tyson acted in good faith reliance on an enforcement position of the United States Department of Labor, under FLSA s 259. The jury also found that Plaintiffs failed to prove class-wide damages, awarding $0.00 to Plaintiffs on both their FLSA collective action and Rule 23 class action claims. The case is Guyton v Tyson Foods, Inc., No. 3:07-cv-0088-JAJ, pending in the United States District Court for the Southern District of Iowa.

This is the second class and collective action jury trial win for Tyson Foods in less than a year on these types of claims. Tyson, represented by Hunton & Williams and Baird Holm, also won a unanimous jury trial verdict in the United States District Court for the District of Nebraska last May on similar claims, alleging failure to pay overtime under the FLSA and Nebraska law for donning, doffing and related activities.

Are Weight Characteristics Permissible Factors in Evaluating Job Applicants?

Hunton & Williams LLP — Wed, 25 Apr 2012 11:50:33 -0500

In Victoria, Texas, the Citizens Medical Center prohibits hiring obese employees. The hospital promulgated a policy that requires all potential employees to have a body mass index (BMI) of less than 35. For example, an applicant who is 5-foot-5 could not weigh more than 210 pounds, and an applicant who is 5-foot-10 could not weigh more than 245 pounds. All potential employees are screened by a physician to assess their fitness for duty. According to the hospital’s policy, an employee’s physical appearance “should fit with a representational image or specific mental projection of the job of a health care professional.”

In Texas, weight is not a protected characteristic. In fact, weight is only a protected characteristic in one state—Michigan—and in only six U.S. cities, including Binghamton (New York), Urbana (Illinois), Madison (Wisconsin), Washington, D.C., and Santa Cruz and San Francisco (California).

While legal under most state discrimination laws, one must determine if this policy would be legal under the federal Americans with Disabilities Act (ADA) or the Americans with Disabilities Act Amendments Act (ADAAA). Individuals with mental and physical impairments that substantially limit major life activities are protected by the ADA. Individuals who have a record of such an impairment and those regarded as having an impairment are also protected under the ADA. The ADAAA was enacted in 2009 and made significant changes to the ADA that opened the protections of the ADA to a much larger group of people.

Specifically, the ADAAA made coverage under the ADA broader by relaxing the standard of “substantial limitation.” Additionally, the ADAAA expanded the scope of “major life activities” to include the operation of major bodily functions, and to include activities such as sitting, reaching, bending, and lifting. The addition of these activities may be relevant to a claim that obesity is a covered impairment. While the ADAAA states that the definition of impairment does not include physical characteristics such as height, muscle tone, and weight that are within a normal range, it does not speak to the classification of these characteristics when they are outside of the normal range, leaving open the possibility that a court could find that obesity is a covered impairment. See 29 CFR §1630.2(h).

Moreover, the ADAAA changed the analysis of the “regarded as” prong of the disability definition by omitting the requirement that an individual prove that he or she is actually disabled in order to proceed under the “regarded as” analysis of the ADA. Therefore, there is an argument that an individual who is obese may bring a successful “regarded as” claim if an employer takes prohibited action based on its belief that the individual’s weight is an impairment, even if no impairment actually exists.

While the ADAAA may have changed the scope of substantial limitation, major life activities, and regarded as disabled, it did not change the definition or the burden of proof associated with the term “qualified.” Therefore, an individual must still show that he or she is qualified for the position he or she seeks. The term “‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” See 29 CFR §1630.2(m).

Some courts have used the qualification standard of the ADA to uphold weight restrictions imposed by employers. See, e.g., Furst v. State of New York Unified Court Sys., No. 97-CV-1502 (ARR), 1999 WL 1021817, at *6 (E.D.N.Y. Oct. 18, 1999) (upholding employer’s weight requirements because they are created to ensure that each candidate “is capable of performing the physical aspects of the Court Officer job in a safe and effective manner, so as not to endanger both himself and the public”).

If Citizens Medical Center’s weight policy is challenged in a federal court on ADA grounds, it will be interesting to see if the court holds, among other things, that the weight policy is directly related to the essential requirements of a position at the hospital.

D.C. Circuit Rejects Continuing-Violation Theory in OSHA Recordkeeping Cases

Hunton & Williams LLP — Fri, 20 Apr 2012 11:38:08 -0500

Last week, the U.S. Court of Appeals for the D.C. Circuit significantly limited the time period in which employers may be cited for recordkeeping violations under the Occupational Safety and Health Act (“the Act”) in AKM LLC dba Volks Constructors v. Secretary of Labor, Civ. No. 11-1106. The Court ruled that such violations must be cited within six months of their occurrence, marking a considerable decrease from the previous practice of citing violations from up to five years prior--the period of time during which injury and illness logs must be retained under the Act. In doing so, the federal appeals court rejected the independent Occupational Safety and Health Review Commission’s decision upholding an enforcement action against Volks Constructors and the Occupational Safety and Health Agency’s (“OSHA”) argument that Volks’s failure to keep injury and illness logs constituted continuing violations.

In November 2006, OSHA cited Volks Constructors for a number of recordkeeping violations, including the failure to record injuries and illnesses as far back as January 2002 and as recently as April 2006. Though the Act has a six-month statute of limitations, OSHA asserted that the recordkeeping violations were “continuous” and thus could be prosecuted until they were corrected or the five-year limitations period for keeping the records expired.

Volks moved to dismiss the citations under the six-month limitations period in the Act, asserting that each violation was discrete. The Occupational Safety and Health Review Commission rejected Volks’s argument by a 2-1 margin, determining that the recordkeeping lapses were continuing, and therefore that the company could be cited for lapses at any point during the required five-year retention period.

Volks appealed this decision to the D.C. Circuit. The D.C. Circuit unanimously reversed the Commission’s decision, holding that there was no ambiguity in the wording of the Act’s statute of limitations, which states that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of the violation.” 29 U.S.C. § 658(a). Judge Janice Rogers Brown, writing for the Court, acknowledged that while federal courts typically defer to agency interpretations of enabling statutes, they do so when the statutory provision is ambiguous and the agency’s interpretation is reasonable. In this case, however, the Court found that the statute was clear, and the agency’s interpretation was unreasonable.

The Court explained that the statute’s statement that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of the violation” clearly refers to a “discrete antecedent event—something that ‘happened’ or ‘came to pass’ ‘in the past.’” Brown stated that in the case at hand, “every single violation for which Volks was cited—failures to make and review records—and every workplace injury which gave rise to those unmet recording obligations were ‘incidents’ and ‘events’ which ‘occurred’ more than six months before the issuance of the citations.”

In response to OSHA’s argument that the violations were “continuing” and thus could be cited until the five-year record retention period expired, the Court determined that “at best” this “approach diminishes [the limitations period] to a mere six-month addition to whatever retention/limitations period [OSHA] desires. We do not believe Congress expressly established a statute of limitations only to implicitly encourage [OSHA] to ignore it.”

Finally, the Court stated that OSHA’s continuing violation theory leads to an “absurd consequence,” since the Secretary of Labor could easily expand the record retention period to 30 years and bring enforcement actions for violations at any point during that period. “There is truly no end to such madness,” the Court wrote.

In light of this decision, OSHA citations alleging failures to record injuries or illnesses occurring more than six months before the citations are issued are no longer enforceable.

California Supreme Court Decides Landmark Wage And Hour Class Action Case

Hunton & Williams LLP — Fri, 13 Apr 2012 14:40:47 -0500

Brinker International, one of the world's leading casual dining restaurant companies, announced yesterday that the California Supreme Court has issued an opinion in Brinker Restaurant Corp. et al. v. The Superior Court for the State of California for the County of San Diego (Hohnbaum). This long-awaited decision, on which Hunton & Williams attorneys M. Brett Burns, Laura M. Franze, and Susan J. Sandidge served as counsel of record for Brinker, resolves multiple first-impression issues regarding California meal period and rest break class actions. Among other things, the Court answered fundamentally important questions regarding the nature of an employer’s duty with respect to employee meal periods, concluding that the duty is to provide a meal period, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, and rejecting the suggestion that the employer must ensure that no work is done. This landmark decision will benefit California employers and employees, and provide important guidance for employers defending meal period and rest break wage and hour class actions in California. A copy of the decision may be accessed here. If you have any questions about the Brinker case, please call our California partners.

OSHA Issues Additional Guidance On Employer Safety Incentives Policies

Hunton & Williams LLP — Wed, 04 Apr 2012 13:09:44 -0500

On March 12, 2012, OSHA issued a memorandum expanding on specific policies and practices that OSHA asserts can discourage employees from reporting workplace injuries or illnesses, and thus, violate the Occupational Safety and Health Act (“OSH Act” or “Act”) and/or the Federal Railroad Safety Act (“FRSA”). Intended as guidance to both field compliance officers and whistleblower investigative staff, the memorandum notes four programs or practices that, while potentially useful to management as a metric for safety performance, cannot be condoned without careful scrutiny because of the risk they could chill employee reporting of workplace injuries or illnesses.

They include:

Policies of taking disciplinary action against employees who are injured on the job, regardless of the circumstances surrounding the injury;
Situations where an employee reports an injury or illness and the stated reason is that the employee has violated an employer rule about the time or manner for reporting injuries or illnesses;
Situations where an employer imposes discipline on the ground that the injury resulted from the violation of a safety rule by the employee; and
Programs that unintentionally provide incentives to not report injuries, such as periodic drawings or prizes for employees or departments if no one from that department is injured over some period of time.

OSHA noted these situations are problematic and should be scrutinized by its investigators because, under the Act, an employer may not “in any manner” discriminate against an employee because the employee exercises a protected right to report an injury. The memorandum discusses alternative programs employers may implement that do not create the same “disincentives,” such as “incentives that promote worker participation in safety-related activities, [for example,] identifying hazards or participating in investigations of injuries, incidents, or ‘near misses.’” Employers subject to the Act and/or the FRSA should reevaluate their policies to ensure they do not directly or indirectly run afoul of the new guidance to investigators.

EEOC Prevented From Conducting A Fishing Expedition Through Employer's Records Under The Guise Of Its Administrative Enforcement Authority

Hunton & Williams LLP — Thu, 29 Mar 2012 13:49:01 -0500

In what was a welcome decision for employers recently targeted by EEOC administrative subpoenas, on February 27, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court’s refusal to enforce what it deemed to be an “incredibly broad” administrative subpoena from the Equal Employment Opportunity Commission. The decision — EEOC v. Burlington N. Santa Fe Ry. Co., No. 11-1121 — resolved Burlington Northern Santa Fe Railway Co.’s two-year battle with the agency over an administrative subpoena seeking nationwide recordkeeping data. The EEOC’s administrative enforcement powers stem directly from the agency’s broad legislative mandate to investigate systemic discrimination, the frequency of which has increased in recent years. But, the Tenth Circuit’s decision is good news for many employers. Not only does its decision confirm that the EEOC’s subpoena and discovery authority is, in fact, limited, but it also prohibits the agency from initiating “pattern or practice” discovery that is irrelevant to its current charges.

The administrative saga began after two rejected job applicants filed EEOC charges against BNSF in Colorado, alleging discrimination on account of a perceived disability under the Americans with Disabilities Act. After receiving the charges, the EEOC sent BNSF a request for “any computerized or machine-readable files … created or maintained by you … during the period December 1, 2006 through the present that contain electronic data about or effecting [sic] current and/or former employees … throughout the United States.” Essentially, any information for the previous four years regarding BNSF’s current or former employees would have to be responsive to the EEOC’s request. BNSF challenged the scope of information requested by the EEOC, demanding documentation that supported the agency’s broad request. The EEOC refused, instead serving a subpoena for the information previously requested, mentioning only that it was expanding its investigation. After BNSF still refused to provide the requested information, the EEOC moved to enforce its subpoena.

The Tenth Circuit’s decision is noteworthy in two respects. First, the Court of Appeals upheld the lower court’s refusal to enforce the subpoena. Although 42 U.S.C. § 2000e-8(a) allows the EEOC to access “any evidence of any person being investigated” as long as it “relates to unlawful employment practices … under investigation,” the Court found that the “wide deference … does not transcend the gap between the pattern and practice investigation and [ ] private claims.” Second, the Tenth Circuit criticized the agency for waiting until the enforcement action to explain the alleged relevancy of its request, stating that “[t]he EEOC should not wait until it applies to the district court to supply justification or evidence that should have been provided during the administrative enforcement phase.” Because the request for information was not “relevant to a charge under investigation,” the Court found that the EEOC essentially sought plenary discovery, information that the EEOC had no jurisdiction to seek.

As the EEOC continues to aggressively pursue pattern and practice charges and investigations, disputes over the breadth of the agency’s administrative subpoenas will only increase. For employers, decisions like that of the Tenth Circuit Court of Appeals in Burlington offer reassurance that courts will temper overbroad information requests for the agency and encourage narrow and relevant information requests going forward.

The Issue Class Action: Another Tool For Employment Discrimination Litigation

Hunton & Williams LLP — Tue, 27 Mar 2012 08:00:34 -0500

Since the U.S. Supreme Court’s decision in Wal-Mart v. Dukes, there has been a significant amount of educated speculation about the effect of that decision on class action litigation in general and more particularly on class actions involving claims of employment discrimination. Dukes is seen as creating an impassable barrier for class actions claiming discrimination in multiple locations based on excess subjectivity arising from decentralized decision-making. Dukes instead focuses the inquiry on the existence and discriminatory effect of enterprise-wide policies such as an employment test or standardized performance criterion. The question remains: what constitutes an enterprise-wide policy or practice? This is a question that has challenged practitioners since General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15 (1982), and before.

Bringing a class action seeking to invalidate an enterprise-wide policy or practice has significant ramifications. Generally, a claim that an employment policy is discriminatory will be made using the disparate impact model; finding an enterprise-wide policy that is not facially neutral is a rare event, and showing that such a policy was the result of intentional discrimination may be exceedingly difficult. Plaintiffs’ counsel, however, generally prefer the disparate-treatment model because relief in disparate impact cases is limited to equitable relief, including back pay. Compensatory and punitive damages are not available in disparate impact litigation. Moreover, disparate-treatment claims must be certified, if at all, under the rigorous standards of Rule 23(b)(3). Thus, even before Dukes, plaintiffs’ counsel faced challenges when pursuing class claims with the primary objective of recovering class-wide compensatory and punitive damages.

In this context, the Seventh Circuit’s recent decision in McReynolds v. Merrill Lynch, No. 11-3639 (February 24, 2012), is significant in two ways. First, it uses an expansive approach in deciding what constitutes an enterprise-wide policy or practice. Second, it permits a challenge to the validity of an enterprise-wide policy or practice using the disparate impact model and Rule 23(b)(2), while preserving claims for compensatory and punitive damages (although not on a class-wide basis).

In McReynolds plaintiffs alleged class-wide discrimination against African-American brokers because of Merrill Lynch’s company-wide “teaming” and “account distribution” policies. “The teaming policy permits brokers in the same office to form teams. They are not required to form or join teams, and many prefer to work by themselves. But many others prefer to work as part of a team. Team members share clients, and the aim in forming or joining a team is to gain access to additional clients . . . . The teams are formed by brokers, and once formed a team decides whom to admit as a new member. Complex Directors and branch-office managers do not select the team’s members.” The “account distribution policy” applies when a broker leaves the firm, and determines how her accounts are distributed by branch management to the remaining brokers. The administration of the “account distribution policy” involved a combination of criteria established by the company and discretion of branch-office managers. Merrill Lynch argued that, in light of Dukes, this was precisely the kind of autonomous, decentralized decision-making that could not be challenged in a class action (and, with respect to the “teaming policy” involved decisions by employees, not managers).

Judge Posner rejected Merrill Lynch’s position, and in effect allowed plaintiffs to use Dukes offensively and to claim that class certification was appropriate because plaintiffs were challenging a company-wide policy. In McReynolds the company-wide policy was “the framework established by the company” which permitted teaming and permitted discretion in account distribution. Thus, Judge Posner concluded that “within each branch office the brokers [and managers] exercise a good deal of autonomy, though only within a framework established by the company” (emphasis added). Accordingly, McReynolds is significant because it authorizes an expansive use of the disparate impact model to challenge aspects of an employer’s “framework” in addition to express policies or established employment practices.

McReynolds is significant in another way because it permits plaintiffs to pursue a disparate impact claim and obtain class certification under Rule 23(b)(2), yet preserve claims for compensatory and punitive damages. Judge Posner directed the certification of an “issue class” pursuant to Rule 23(c)(4), permitting the issue of the validity of the “teaming” and “account distribution” policies to be decided in a class action, leaving individualized claims for damages (including compensatory and punitive damages) to be resolved in separate proceedings. Thus, if the court deciding the “issue class” determined that either the “teaming” or “account distribution” policies created an unlawful disparate-impact, the court would enjoin the use of the discriminatory policy. Individual African-American brokers – class members – could then seek individual relief in individual actions in which they would be entitled, when pursuing a disparate impact claim, to a rebuttable presumption that they suffered from the discriminatory policy, and in addition pursue a disparate-treatment claim in order to seek compensatory or punitive damages.

Although Rule 23(c)(4) authorizing issue classes has existed since the 1966 amendments to Rule 23, the use of issue classes in employment discrimination litigation has been exceedingly rare. As McReynolds shows, however, the issue class permits plaintiffs’ counsel to pursue a disparate impact claim while preserving the right to seek compensatory and punitive damages in a separate proceeding, and this raises the distinct possibility that plaintiffs’ counsel will increase the use of this procedural tool in employment litigation.

Aiming To Narrow The Definition Of Supervisor Under The NLRA, Senate Democrats Ask For A Little RESPECT

Hunton & Williams LLP — Thu, 22 Mar 2012 08:44:26 -0500

While “employees” have the right to form, join, or assist labor organizations under the National Labor Relations Act (NLRA), supervisors are not employees under the statute and do not have the same rights. Under current case law, “supervisor” is interpreted broadly and employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act. As expected and as we previewed in a prior posting, Senate Democrats recently announced new legislation that would narrow the definition of “supervisor” under the NLRA, increasing the number of workers eligible to join unions.

The bill is known as the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act, or RESPECT Act. It was first introduced in 2006 when there were a series of NLRB decisions, collectively known as the Kentucky River cases, which expanded the definition of supervisory employees. The current leading precedent on the definition of “supervisor” is Oakwood Healthcare, Inc., a 2006 decision in which the NLRB clarified the definition of “supervisor,” and defined previously ambiguous terms such as “assign” and “responsibly to direct” as used in Section 2(11) of the NLRA. Using these new definitions, the NLRB found that permanent charge nurses were supervisors under the meaning of Section 2(11) and, therefore, not included within the protection of the Act.

The latest version of the RESPECT Act however would remove the terms “assign” and “responsibility to direct” from Section 2(11) and would also insert language requiring employees to spend a majority of their time on supervisory duties in order to be considered supervisors.

To prepare for the passage of this bill, employers should review the job duties and responsibilities of lead persons at locations particularly at risk to union organizing efforts and ensure that these employees are spending the majority of their time on supervisory duties, and are doing more than merely assigning tasks (e.g., evaluating employees for raises, hiring subordinates, making effective recommendations for hire, and authorizing time off or overtime). This will ensure that those individuals will be classified as supervisors in future organizing campaigns and elections even in the event the RESPECT Act becomes law.

NLRB New Posting Still Effective April 30, 2012

Hunton & Williams LLP — Mon, 19 Mar 2012 08:36:32 -0500

In several prior blog entries, we told you about the NLRB’s new requirement that employers post a notice regarding employee rights under the NLRA. Employers have been following the story with interest.

Initially proposed by the NLRB in December 2010, the new posting tells employees about their rights under the National Labor Relations Act (“NLRA”). The new requirement initially had an effective date of November 14, 2011, but it has been delayed several times. The NLRB first delayed implementation until January 31, 2012, to allow “for further education and outreach.” Then, several industry groups and businesses filed federal lawsuits in South Carolina and Washington, D.C., challenging the NLRB’s Final Rule. The groups argued the NLRB did not have statutory authority to issue the notice requirement. While the lawsuits were pending, in the District of Columbia and South Carolina, the NLRB agreed to further delay implementation until April 30, 2012.

On March 2, 2012, the U.S. District Court for the District of Columbia upheld the NLRB’s authority to issue the notice requirement. The Court did strike down two parts of the NLRB’s Final Rule, however: that which would have treated a failure to post as an unfair labor practice, and that which would toll the statute of limitations for any unfair labor charge against an employer who was not in compliance.

On March 5, 2012, the plaintiffs in that lawsuit (including the National Association of Manufacturers) filed an appeal to the U.S. Court of Appeals to the District of Columbia Circuit. The District Court denied a request to enjoin the NLRB from enforcing the rule while the appeal is pending. The District Court stated that it was not convinced any irreparable harm would befall employers if they are required to post the NLRB’s notice while the Circuit Court considers the case. The Court noted that, if the notice requirement is later invalidated, employers will simply take down the notice.

No ruling has been issued in the South Carolina case; the Court is considering motions for summary judgment.

What This Means For Employers

This new notice requirement applies to all private-sector employers covered by the NLRA, which is the vast majority of companies. Except for federal contractors and subcontractors, which are already required by the Department of Labor to post a very similar notice, this will be a totally new posting obligation.

Unless a company already posts the DOL’s comparable notice, employers should obtain a copy of the notice from the NLRB via its website, or a Regional Office. The notice should be posted, both physically and electronically, in all places that other employee notices are posted. Additional details about how to fully comply with this posting requirement are discussed in our August entry, and in the NLRB’s frequently asked questions.

Companies should ensure they are compliant with this requirement by no later than April 30, 2012.

It remains to be seen whether the new posting will have any impact on labor relations within a given company. Non-unionized employees may have a new or increased interest in union representation as a result of this poster.

EEOC Issues Guidance To Disabled Vets And Employers

Hunton & Williams LLP — Tue, 13 Mar 2012 14:05:22 -0500

On February 28, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to wounded veterans and to employers under the ADA Amendments Act of 2008. The two publications are revised versions of guides that originally were posted by the EEOC in February 2008. This guidance reflects another move by federal agencies to address the employment of disabled persons. Last December, we reported that the OFCCP issued a Notice of Proposed Rulemaking that would, among other things, establish a national utilization goal for individuals with disabilities. There is certainly more than one indication from the federal government that employers will likely continue to face heightened responsibilities concerning the employment of disabled individuals.

Disabled veterans are protected from employment discrimination under both the Americans with Disabilities Act (“ADA”) and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Most employers are familiar with their obligations under the ADA, but many are less familiar with USERRA. The expanded definition of disability under the 2008 amendments to the ADA, combined with an influx of returning veterans, means that employers must be prepared to handle appropriately their obligations to veterans with both physical and mental impairments that qualify as disabilities, such as post traumatic stress disorder. Issued in a question and answer format, the revised Guide for Employers gives insight into the EEOC’s view of the ADA’s effect on the recruiting, hiring, and accommodation of disabled veterans. The Guide for Employers includes questions regarding self-identification, affirmative action, and reasonable accommodations. USERRA provides that returning service-members generally must be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. The revised Guide for Employers also reminds employers that they may have obligations under USERRA to provide additional training to returning veterans to allow them to perform their jobs, whether disabled or not.

The EEOC also issued a revised Guide for Wounded Veterans to address common questions that veterans have concerning their employment after service with civil, federal contractor and federal agency employers. The Guide for Wounded Veterans makes it plain that veterans with “service-connected” disabilities and also those without such disabilities cannot be subjected to employment discrimination. Veterans can review the Guide for Wounded Veterans to get information about self-identifying their disabled veteran status, disclosing a disability, answering an employer’s questions about a disability, and requesting an accommodation under the ADA. The Guide for Wounded Veterans also explains the preferential treatment that veterans receive concerning employment with federal agencies under the Veterans Preference Act and the affirmative obligations that federal contractors have to hire and promote qualified disabled veterans under Vietnam Era Veteran’s Readjustment Assistance Act.

Heads, I Win; Tails, You Lose: The Dilemma of Conflicting Disparate-Impact and Disparate-Treatment Claims in the Wake of Ricci v. DeStefano

Hunton & Williams LLP — Fri, 09 Mar 2012 13:29:20 -0500

In its decision in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), the Supreme Court sought to resolve a conflict between the “twin pillars of Title VII,” the Act’s disparate-impact and disparate-treatment provisions. Ricci involved a promotional examination administered by the City of New Haven. After candidates took the examination, the City refused to certify the test results because of a concern that the test had a disparate impact on African-American candidates and would lead to the promotion of white candidates.

OFCCP Proposes 2013 Budget, Announces Goals

Hunton & Williams LLP — Tue, 06 Mar 2012 10:05:58 -0500

The Office of Federal Contract Compliance Programs (OFCCP) budget request for next year reflects its intent to increase aggressive enforcement. The OFCCP, part of the U.S. Department of Labor, is the agency charged with enforcing the affirmative action obligations of federal contractors and subcontractors. Approximately 25% of the American workforce is employed by federal contractors and subcontractors, whose federal contracts total more than $700 billion annually. The OFCCP’s proposed budget for FY 2013 is now available online.

The OFCCP has requested a 1% increase from its FY 2012 budget, for a total of $106,415,000. The increase is primarily directed to pay and benefits adjustments for its 755 personnel, and rent. The OFCCP’s funding request focuses on three specific priorities: (1) ensuring quality evaluations by compliance officers; (2) increasing the technical proficiency of OFCCP staff; and (3) expanding the knowledge base of workers and federal contractors. “OFCCP will continue to conduct more full-desk audits, additional onsite investigations, focus reviews and stakeholder education.” The OFCCP intends to increase the amount of its “thorough” compliance evaluations by 12% in FY 2013, to 4,530.

In justifying its budget request, the OFCCP said it is “making significant investments in its regulatory activity, primarily in the promulgation of new rules.” Proposed new rules include: new regulations for the construction industry, regulations to protect workers with disabilities, and regulations revising Section 4212 on veterans’ employment. Once these final rules are published, the OFCCP will launch an extensive educational campaign directed towards its staff, contractors, and community organizations. The OFCCP also plans a “look back” review, to assess the rules’ impact after they have been in effect.

The OFCCP articulates several cost-saving measures. Among them is the accelerated deployment of the Federal Contract Compliance System (FCCS), a modern cloud-computing case management solution. This new IT system is intended to move the OFCCP from a manual process to an automated one and away from hard copy files. The FCCS uses imbedded business rules to prevent regional deviations from standard operating procedures. It also integrates various functions, like word processing, spreadsheets, email and statistical software, to increase efficiency.

Also among the OFCCP’s cost-reduction measures are Quality Assurance Audits and Strategic Case Selection. QA audits are intended to ensure high quality investigations by monitoring field offices. They will include random quality audits, self-audits and accountability reviews. The OFCCP is also updating its compliance evaluation manual with revised enforcement procedures.

Strategic Case Selection refers to the OFCCP’s continued focus on particular areas of affirmative action compliance: compensation (especially “gender gaps”), hiring, VEVRAA, and Section 503. The agency intends to prioritize cases based on the strength of evidence of a potential violation. The OFCCP will also continue its emphasis on systemic noncompliance and patterns of violation within a corporation. Enterprise-wide investigations will be used in those cases in lieu of single facility audits.

It remains to be seen whether the OFCCP’s budget will pass as proposed. Either way, the OFCCP will certainly continue to be aggressive in its enforcement efforts under Director Patricia Shiu, and employers must be proactive in their compliance efforts, rather than waiting to review their practices only after the OFCCP initiates an audit.

Quickie Union Elections With Less Supervision: Let The Games Begin

Hunton & Williams LLP — Fri, 24 Feb 2012 11:34:50 -0500

In prior postings, we have reported about the potential effects that the National Labor Relations Board’s (“NLRB”) recent pro-labor composition could have on non-union employers and how it will become increasingly easier for unions to organize employees as a result of the NLRB’s recent decisions and procedural changes. This posting focuses on the convergence of two potential developments – the likely change in the definition of “supervisor” under the National Labor Relations Act (the “Act”) and the NLRB’s recent proposal to expedite the procedures for union elections – and how these two developments combined could hamper an employer’s ability to effectively oppose a union-organizing campaign.

Supervisor Status Under the Act

The Act defines the term “supervisor” as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” The definition is significant because supervisors are not protected under the Act and cannot be part of a bargaining unit. They are the employer’s agents and, should employees elect a union and some day go on strike, the supervisors would be the core group left to operate the business. Supervisors can be ordered to assist the employer in responding to organizing campaigns and are many times an employer’s most important asset in mounting an effective opposition. It is often, though not always, in the best interests of employers to have the supervisor term interpreted as broadly as possible so as to narrow the number of employees covered by the Act.

The current leading precedent on the definition of “supervisor” is Oakwood Healthcare, Inc., a 2006 decision in which the NLRB interpreted the supervisor definition broadly and held that lead employees who merely assign duties to other employees on a daily basis are statutory supervisors under the Act. The supervisor definition outlined in Oakwood Healthcare was a major victory for employers, and organized labor has made it clear that this is a case it would like to see the NLRB revisit and reverse.

The Oakwood Healthcare decision was decided by 3-2 margin and a Republican majority NLRB. Former Board Member Wilma Liebman issued a scathing dissent in Oakwood, opining that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks. If Oakwood is revisited, the current composition of the NLRB would likely adopt Liebman’s dissent, thus resulting in a narrower interpretation of “supervisor.” This would make it more difficult for employers to classify lead employees who merely assign duties on a daily basis as supervisors. Thus, in a union organizing drive, these individuals could be part of the bargaining unit, could advocate unionization to the workers they oversee, and could not be used by the employer in its response to organizing efforts.

The NLRB’s “Quickie Election” Proposals

The impact of a potentially narrower definition of supervisor is compounded by the NLRB’s proposed rules to expedite the union election process – commonly referred to as a “quickie election” process. These proposed changes have been discussed in detail in our prior postings and are scheduled to take effect on April 30, 2012. One of the most notable proposed changes will give the hearing officer authority to limit pre-election hearings to genuine questions concerning representation, an extremely rare occurrence and a standard not typically met when employers raise issues about whether a particular employee is a supervisor under the Act and thus not entitled to vote in the election.

The problem this change creates for employers as it relates to the statutory supervisor issue is significant and will no doubt lead to significant union gamesmanship during the petition and election process. Among other things, a union’s election petition could seek a proposed bargaining unit that includes lead employees who are potentially on the borderline between supervisory and employee status. Though an employer may want to challenge their inclusion in the proposed bargaining unit prior to the election, the NLRB hearing officer can exclude such the issue from the pre-election hearing if it does not create a genuine question concerning representation. And even if the hearing does focus on the issue, the hearing officer may be able to avoid ruling on the challenge until after the election is conducted. The employer could thus be handcuffed in its use of these arguable supervisors in opposing the union’s organizing efforts prior to the election due to the risk that the hearing officer could retroactively rule after the election that the individuals were not supervisors and thus were protected under the Act. The net effect is that the employer has no choice but to rely only on upper-level management employees who clearly fall within the supervisor definition.

What Can Employers Do?
In anticipation of the likely reversal of Oakwood and the corresponding effect that the NLRB’s quickie election rules would have on the supervisor issue, employers should review the job duties and responsibilities of lead persons at locations particularly at risk to union organizing efforts and ensure that these employees are doing more than merely assigning tasks (e.g., evaluating employees for raises, hiring subordinates, making effective recommendations for hire, and authorizing time off or overtime) to ensure that those individuals will be classified as supervisors in future organizing campaigns and elections. To the extent additional supervisory responsibilities can be assigned to these individuals, such changes should be made to remove any doubt about the supervisory status of these key employees. Without such certainty, employers may have to forego using one of their most effective campaign tools, while at the same time operating under a much more expedited election process that gives the employer less time to respond to the campaign and educate its employees regarding their voting decision.

New York Case Challenges President Obama's NLRB Appointments

Hunton & Williams LLP — Tue, 21 Feb 2012 12:02:22 -0500

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB. A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the appointments. In Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC, a case in which the NLRB is seeking a federal court injunction to declare an end to an employer lockout, the Defendant is contesting the action on the grounds that because three of the Board’s five members have not been validly appointed, the Board has no authority to act.

Paulsen v. Renaissance Equity Holdings, LLC

In Paulsen, the Board filed a petition for a Section 10(j) injunction seeking to end a lockout imposed by Renaissance Equity Holdings (which does business as Flatbush Gardens) after failing to reach a collective bargaining agreement with the union representing its employees. Renaissance responded to the Board’s petition by filing a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim. Its primary argument is that the Board lacked the statutorily required quorum of three members necessary to authorize the filing of the petition in the first place. To support its position, Renaissance cites to the Supreme Court’s recent decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010), in which the Court held that the Board is not empowered to act without a three member quorum. Drawing on this principle, Renaissance contends that the Board lacked the quorum required to act here because President Obama’s “recess appointment” of three of the Board’s current members did not occur while the Senate was actually in recess and therefore the appointments were invalid. Typically, members of the Board are appointed by the President “with the advice and the consent of the Senate.” 29 U.S.C. § 153(a). However, the President may appoint members without Senate approval if the Senate is in recess.

Recess Appointments?

On January 4, 2012, acting without Senate confirmation, President Obama announced that he would be appointing three members to the Board. These members were sworn into office on January 9, 2012. The legality of these appointments turns on whether the Senate was in recess at this time. Early on, the Department of Justice issued a memorandum supporting the appointments stating that a president can make recess appointments when lawmakers hold pro forma sessions without conducting business.

In the Paulsen case, Renaissance argues that the Senate agreed to continue its 111th Session from December 20, 2011 through January 3, 2012 and begin its 112th Session on January 3, 2012 and therefore was in session at the time of the appointments. Additionally, as evidence that the Senate was in session, Flatbush Gardens notes that the Constitution prohibits the Senate from adjourning for more than three days without the consent of the House of Representatives and the House of Representatives never consented to the Senate’s adjournment. Finally, Flatbush Gardens argues that the Senate’s sessions were not simply formalism because it conducted business during these sessions, passing the Temporary Payroll Tax Cut Continuation Act of 2011 by unanimous consent.

How to Respond to Action by the Board

If the President’s appointments ultimately are ruled to be invalid, the Board may indeed lack a quorum. In that instance, Board decisions and actions taken in the interim (such as pursuing an injunction to end an employer lockout) may be rendered invalid. Thus, until the Board’s authority is clarified, employers are stuck between a rock and a hard place. So what should an employer do when faced with Board action in the interim? It is probably not advisable as a general matter to refuse to comply with Board decisions based solely on the premise that the President’s appointments may turn out to be invalid; such action would risk additional violations of the NLRA. That said, compliance with some Board orders could have irreversible consequences notwithstanding any later decision that the order was void as a result of the invalid appointments. While each situation will likely require its own strategic response, employers facing Board action may at least consider raising a challenge such as the one asserted in the Paulsen case. We will continue to closely monitor all legal challenges to the President’s new Board appointments and to assist those of our clients facing imminent Board action to develop appropriate responses based on the unique circumstances of each situation.

EEOC Releases FY 2011 Statistics; Charges At An All-Time High

Hunton & Williams LLP — Mon, 13 Feb 2012 10:37:41 -0500

On January 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) released its enforcement and litigation statistics for FY 2011. The statistics show that the EEOC received a record 99,947 charges of discrimination and that, despite a record number of charges, the EEOC processed and resolved more charges than were filed, resolving 112,499 charges during FY 2011. On the monetary damages front, the EEOC obtained $455.6 million in relief through EEOC mediation and litigation efforts, which represents $51 million increase from the previous fiscal year.

The FY 2011 data also revealed the following important statistics:

For the second straight year, retaliation claims were the most common allegations made by charging parties. According to the EEOC, retaliation claims were made in over 1/3rd of all charges received.
Disability and age discrimination claims increased significantly from prior years.
The EEOC’s enforcement efforts for the ADA produced the highest increase in monetary relief, with the EEOC obtaining $103.4 million for alleged violations of the ADA.
FY 2011 was the first full year of EEOC enforcement of the Genetic Information Nondiscrimination Act (“GINA”),which prohibits discrimination on the basis of family medical history and other genetic information. During the first year of GINA enforcement, the EEOC received 245 charges alleging violations of GINA.

In light of these trends, employers should pay particular attention to their ADA accommodation procedures and ensure that they engage in a thorough and well-documented interactive process in response to all accommodation requests. Moreover, employers should ensure that front-line supervisors and personnel decision-makers are fully-versed in the protections afforded to individuals who engage in protected activity and that they understand retaliation risks Finally, employers who have not evaluated their policies and procedures for GINA compliance should do so to avoid what is likely to be an increasing focus by the EEOC and charging parties on GINA obligations.

Eleventh Circuit Holds That Employer Neutrality Agreement May Be A "Thing Of Value" Under LMRA; Creates Circuit Split

Hunton & Williams LLP — Tue, 07 Feb 2012 14:53:00 -0500

Last month, the Eleventh Circuit issued an important ruling in favor of an employee who is accusing his employer and UNITE HERE of violating the Labor Management Relations Act ("LMRA") by entering into an organizing rights agreement that includes employer neutrality and employee access features. In Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir. January 18, 2012), the Court reversed a lower court decision dismissing Mulhall's lawsuit. That court had held that Section 302 of the LMRA, which forbids employers from "pay[ing], lend[ing] or deliver[ing]" money or any other "thing of value" to a labor organization, could not be construed to outlaw voluntary agreements between employers and unions that set conditions for union organizing campaigns.

The Eleventh Circuit panel, "relying on . . . common sense," disagreed with the lower court's ruling, noting that it was apparent from the plain meaning of the statute that "organizing assistance" could indeed constitute a "thing of value" under Section 302 because an agreement involving "intangible services, privileges or concessions" can be "paid or operate as payment." The Court noted that whether something can be "paid" within the meaning of Section 302 depends not on whether it has actual monetary value, but instead "on whether its performance fulfills an obligation." The Court went on to opine that where an employer offers organizing assistance with the intention of improperly influencing a union, then the policy concerns underlying Section 302 -- the prevention of bribery and extortion during the union organizing process -- are implicated, and a violation of the statute may have occurred. The Court remanded the case to the district court for a determination whether the facts alleged by Mulhall -- which included the allegation that his employer had offered the neutrality and access agreement to UNITE HERE in exchange for the union's financial support for a casino gaming ballot initiative sought by the employer -- would support a finding that the agreement violated Section 302.

The Court expressly acknowledged that its decision represents a departure from decisions reached by sister Circuits. The Fourth Circuit had previously held that organizing assistance has no ascertainable value under Section 302 and therefore that an employee's civil RICO claim against his employer and union premised on violations of Section 302 (which is a RICO predicate act) could not go forward. The Third Circuit similarly held that a neutrality agreement could not qualify as a "thing of value" under Section 302, regardless whether it benefitted the employer and the union, because it could not be paid, loaned or delivered. The Mulhall Court chose not to accept the rationale articulated in those decisions. Instead, it sided with the Second Circuit, which commented in a Section 302 case involving different facts that "[v]alue is usually set by the desire to have the 'thing' and depends upon the individual and the circumstances." The Mulhall Court's ruling thus stands for the proposition that whether an intangible benefit like a neutrality agreement can have "value" under Section 302 depends on the facts of each case.

The Mulhall decision sets up an intriguing Circuit split on an issue of clear importance both to employers and unions. The case already has attracted attention from the employer and organized labor communities, as both the Service Employees International Union and National Federation of Independent Business Small Business Legal Centers filed amicus briefs during the appeal process. The decision also places employers in somewhat of a quandary...indeed, how should they feel about the Court's holding? On one hand, Mulhall is problematic for employers who have already entered into organizing rights agreements with unions, as it might incentivize employees to seek injunctions attempting to block those agreements. On the other hand, Mulhall allows employers who do not want to enter an organizing agreement to reject any union appeal to do so on the grounds that it would be unlawful. Thus, if the Mulhall decision is appealed to the U.S. Supreme Court, the employer community will need to exercise a great deal of care and consideration in deciding what amicus position to take. We will continue to follow this case closely and will update you if and when it progresses.