Category: Employment Law

Judge Gorsuch and Religious Bigotry

What would a Justice Neil Gorsuch do?  We need not look far to answer that question.

Today, the Supreme Court decided, for the ninth time since all the briefs were filed, to postpone a decision on whether to take up the case of Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n.  That case has been a flashpoint in Colorado, and could be one nationally, on the “right” of businesses to use religion as the reason for discriminating against members of the LGBT community.  It could legitimate discrimination against women, people of color and members of religious groups.  And a Gorsuch vote could make that happen.

As the Colorado Court of Appeals noted, this case arose from the decision of a bakery in a Denver suburb not to decorate or sell a wedding cake for a same-sex wedding ceremony.  The owners of that bakery justified their decision on religious grounds.  That court decided that the Colorado Anti-Discrimination Act (“CADA”) “is a neutral law of general applicability, and does not offend the Free Exercise Clause of the First Amendment.”  The bakery, that court concluded, ” remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing customers based on their sexual orientation.”

This is not a new legal principle.  Fifty-one years ago, a federal district judge rejected the assertion by restaurants in South Carolina that requiring them to serve African-American customers violated their First Amendment right to free exercise of their owner’s religious beliefs.  It rejected the owner’s argument “that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.” Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).

Judge Gorsuch, in contrast, has expressed an expansive view of First Amendment religious rights.  He stated, in his concurring opinion in Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013), aff’d, 134 S.Ct. 2751 (2014), that the Affordable Care Act’s requirement that company-provided health insurance coverage contraception “infringes the [company’s owners’] religious liberties by requiring them to lend what their religion teaches to be an impermissible degree of assistance to the commission of what their religion teaches to be a moral wrong.”  He ignored the fact that the statute he was interpreting, the Religious Freedom Restoration Act (“RFRA”), applies only to government conduct that imposes a “substantial burden” on people’s religious expression.  He ignored the fact that Hobby Lobby was being required only to include contraceptive coverage in a plan that it paid for, the interests of the women who were seeking insurance coverage for contraception, and the fact that none of the contraceptive methods to which it objected would  prevent implantation of a fertilized human egg.

In a later case, Little Sisters of the Poor Home for the Aged v. Burwell, 799 F.3d 1315 (10th Cir. Colo. 2015), vacated sub nom. Zubik v. Burwell, 136 S. Ct. 1557 (U.S. 2016), he voted to have the entire court decide whether a system, which allowed a religious employer that objected on religious grounds to paying for contraceptive coverage by submitting a form to the insurer or to the federal government, violated their rights under RFRA.  Again, none of this would have imposed a substantial burden on the objectors’ religious beliefs.  All they would have had to do is to fill out a form.

Two other cases show how far Judge Gorsuch is willing to go.  In Green v. Haskell County Bd. of Comm’rs, 574 F.3d 1235 (10th Cir. 2009), he voted to have the full court consider whether a county government violated the Establishment Clause of the First Amendment by installing on the courthouse lawn a monument with a summary of one version of the Ten Commandments on one side and the Mayflower Compact on the other.  He ignored the fact that the language on that monument was not the Jewish version of the Ten Commandments, and the specifically religious content and context of the Mayflower Compact.  Instead, he viewed the Ten Commandments as a secular document, which incidentally trivializes the obviously religious character of the Commandments.

And he also sought full-court review of a decision that held that government-paid highway memorials, in the form of twelve-foot high crosses, for fallen state troopers had “the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion.”  Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010).  That’s right, he believed that the display of crosses, paid for by the state government, did not endorse Christianity.

Judge Gorsuch does not understand or does not care about the rights of members of religious minorities — such as Jews, Muslims, Hindus and Buddhists — and of atheists not to have their government promote the view of a particular religion or set of religions.  He is not willing to consider the concerns of some — such as the female employees of Hobby Lobby — who would not be able to exercise their right to insurance coverage for contraception because of the religious beliefs of their employers or of their employers’ owners.

If he is confirmed, Judge Gorsuch likely would vote to allow employers and other businesses to use religion as the reason for blatant discrimination against others.  Any such precedent would be difficult to confine to discrimination because of sexual orientation.  Companies could refuse to hire women, or members of other religions, or members of other races, on religious grounds.  Or people could use religion as an excuse not to pay taxes, or not to obey noise or zoning ordinances, or to practice plural marriage, or many other things that would be illegal for anyone else.

This is deeply alarming.  It is one more reason why the Senate should not confirm Judge Gorsuch.

Judge Gorsuch’s Unreasonable Definition of “Reasonable”

In a 2014 opinion, Judge Gorsuch concluded that a leave of absence of more than six months was not a “reasonable accommodation” for an employee’s disability.  Hwang v. Kan. State Univ., 753 F.3d 1159 (10th Cir. 2014).  He therefore ruled that the plaintiff in that case had failed to establish that her employer, a state university, had violated her rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

That opinion ignored the central purposes of the Rehabilitation Act and of the Americans with Disabilities Act (“ADA”).  Congress instructed the courts to use the standards adopted under Title I of the ADA — the employment provisions of that statute — in deciding cases under § 504 of the Rehabilitation Act.  29 U.S.C. § 794(d).

The ADA and § 504 prohibit employers from not making reasonable accommodations to the known physical or mental limitations of an employee or applicant who is otherwise qualified for his or her job.  29 U.S.C. § 12112(b)(5).  An employer can avoid liability by demonstrating that the accommodation would impose an undue hardship on the operation of the employer’s business.

Congress made a number of legislative findings when it enacted the ADA.  It found, among other things, that “discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem”; that people with disabilities “occupy an inferior status in our society” and “are severely disadvantaged,” including economically; and that this discrimination “costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”  Section 504 of the Rehabilitation Act and Title I of the ADA were enacted to combat that discrimination and to try to prevent disabled persons from being trapped in an endless cycle of poverty.

Prof. Hwang needed to take time off work in order to get treatment for the leukemia.  She was able to get six months’ paid leave, some of which was “shared leave” — leave time that other university employees donated to her.  She asked for additional leave for the spring semester, promising to return in time for the summer term.  But she had not been idle even when receiving chemotherapy.  As the district court — the trial court — explained, two substitute teachers covered her classes while she was receiving treatment; she “prepared the substitutes and shared her teaching materials, lesson plans, and syllibi” with them; and she “consulted with the substitutes through phone calls and e-mails while she was hospitalized.”

The university refused to extend her leave, based on a regulation that limited her leave time to six months.  That led to the termination of her employment and to her lawsuit.

In an earlier disability discrimination case, Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th Cir. 1998), Judge Gorsuch’s court held or at least implied that a one-year leave of absence could be a reasonable accommodation.  Judge Gorsuch cited, but did not follow, that decision.  Instead, he concluded that anything more than a six-month leave of absence would not be a reasonable accommodation for Prof. Hwang or to any other employee.  He claimed that the Rehabilitation Act “seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

The cases interpreting these statutes have made it clear that an employee is not entitled to the accommodation of his or her choice, if more than one accommodation is possible.  Employers are not required to create new jobs for disabled employees, and need not offer indefinite leaves of absence.  However, whether a particular accommodation is reasonable, and whether that accommodation would impose an undue hardship on the employer, are highly fact-specific inquiries.  Where the facts are in dispute, as they were in this case, the court can and should not decide these questions based only on the documents submitted by the parties, as was done here on a pretrial motion.  Instead, those matters can and should be decided by the jury at trial.

Judge Gorsuch told the Senate Judiciary Committee that judges should not be secret legislators.  Yet that is exactly what he did in this case.  His six-month limit on employer-granted leaves does not appear in either of these statutes.  It contravenes the clear Congressional intent that these statutes be interpreted in a way that would eliminate discrimination and make it possible for disabled persons to be productive members of society.  He chose, instead, to affirm a decision to fire a cancer survivor solely because her doctor recommended that she not return to work within six months.

There is more to this story.  For example, Judge Gorsuch twisted the words of an EEOC compliance document in a way that misrepresented its meaning.  But we need not go there.  He interpreted a statute, which requires an individualized assessment of the demand of a disabled person’s job and of the ability of that person to perform that job, to impose a blanket rule that prevented an employee from being able to continue performing her job.  That is deeply troubling and should be disqualifying for the most important court of law in the United States.

Judge Gorsuch and the (Almost) Frozen Trucker

In his opening statement last Monday to the Senate Judiciary Committee, Judge Neil Gorsuch disavowed any intent to legislate from the bench.  Yet in one of his decisions, the focus of much attention, that is exactly what he did.

The case, TransAm Trucking, Inc. v. Admin. Review Bd., 2016 U.S. LEXIS 13071 (10th Cir. July 15, 2016), involved Alphonse Maddin, the driver of a tractor-trailer on I-88 in Illinois late at night in January.  This case arose under the Surface Transportation Assistance Act (“STAA”), a law passed by Congress in 1994.  The STAA is intended to protect commercial truck and bus drivers from retaliation because they have raised safety concerns or have refused to operate a vehicle in conditions they believe to be unsafe.

That statute prohibits any person from discharging an employee, among other reasons, because “the employee refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”  49 U.S.C.§ 31105(a)(1)(B)(ii).  An employee who claims that an employer has violated the STAA can file an administrative complaint.  That case is heard by an administrative judge (“AJ”).  The losing party can appeal that decision to the Administrative Review Board (“ARB”) of the U.S. Department of Labor.  An appeal from that decision is heard by a court of appeals, in this case, the court on which Judge Gorsuch sits.

This should have been an easy case.  The AJ, the ARB and a majority of the Tenth Circuit concluded that the employer, TransAm, violated the STAA when it fired Mr. Maddin.  He had pulled off I-88 late that night because he was low on gas.  When he tried to start his tractor again, he discovered that the brakes on the trailer had frozen because of the extreme cold.  He called his dispatcher.  He was told to remain with the tractor-trailer until a repair vehicle arrived.  He was told that would take about one hour.

Three hours later, he awoke in the cab of the tractor.  No repair person had arrived.  The heater in the cab of the tractor was not working.  Mr. Maddin could not feel his feet.  His speech was slurred and he was having trouble breathing because of the extreme cold.

He called again to his dispatcher.  He was told to wait until help arrived.

Thirty minutes later, no one had arrived.  Mr. Maddin called his supervisor and described his symptoms.  His supervisor told him either to drag the trailer down the highway, despite its frozen brakes, or to wait with the trailer until a repairperson met him.

Mr. Maddin felt that both of those alternatives would have created an unsafe situation for himself and for others.  Instead, he locked the trailer, unhitched the tractor and drove it away.  When he returned, about 15 minutes later, a repairperson was there.  That person repaired the brakes on the trailer, and Mr. Maddin was able to drive away with it.

One week later, TransAm fired him for violating company policy by abandoning his load while under dispatch.  He filed a complaint, claiming a violation of the STAA.  That led to the Tenth Circuit’s decision, from which Judge Gorsuch dissented.

Judge Gorsuch stated that TransAm had not violated the STAA, because Mr. Maddin, in his view, had not refused to “operate” a “vehicle” because of his good-faith safety concerns about that “vehicle.”  The STAA does not define the term “operate.”  But it does define “commercial motor vehicle” to mean “a self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo” where the vehicle, among other things, weighs at least five tons.  The specific provision at issue in this statute uses the word “vehicle,” not “commercial motor vehicle” or “motor vehicle.”  It is reasonable to assume that Congress meant the word “vehicle” to include, but not to be limited to, a “motor vehicle.”

Judge Gorsuch claimed that TransAm fired Mr. Maddin not because he refused to operate a vehicle due to his safety concerns, but instead because he refused to exercise his statutory “right” to not operate the tractor-trailer until help arrived.  That claim ignores the fact that Mr. Maddin was worried that, if he were to stay with the tractor-trailer, he could freeze to death.  The real issue is whether he refused to operate not just the tractor, but also the trailer, because of those safety concerns; and whether that refusal was protected by the STAA.

In essence, Judge Gorsuch treated the tractor-trailer as if they were two separate vehicles.  Clearly, Mr. Maddin was able to operate the tractor safely.  However, the tractor could not pull the trailer safely.  Mr. Maddin unhitched the locked trailer and drove off in the tractor.  And TransAm fired him for doing that.

TransAm clearly felt that Mr. Maddin had violated its rules by not operating or remaining with the trailer.  It treated the tractor and trailer as being one vehicle, or the trailer as a vehicle that its driver had no right to leave by the side of the road.  In other words, it fired him for refusing to operate the trailer.  That refusal was protected by the STAA because the driver’s and the public’s safety were at risk.

This seems obvious to ordinary human beings.  The fact that it was not obvious to Judge Gorsuch is deeply troubling.  Among other things, it raises serious questions about his claimed refusal to legislate.

His dissent adopted a disdain about the safety of drivers and the public that the STAA was enacted to protect.  The statute was passed to protect drivers and the public from companies’ insistence that their drivers choose between their jobs and being able to operate their vehicles safely.  Although his dissent is couched in terms of legislative intent, Judge Gorsuch adopted an interpretation that would have gutted much of that statute.  His claim that he has not attempted to legislate from the bench betrays either his failure to recognize what he did in this case or an attempt at outright deception about his methods.

The Senate has a legitimate right to be concerned when a federal judge ignores the clear intent of a federal statute.  The senators who are complaining about this dissent are Democrats.  In another situation, it could be Republicans who would complain.  Both would be right.  Federal judges must not legislate, and they must be honest about their methods.  This dissent, together with Judge Gorsuch’s other actions and decisions, demonstrates why the Senate should not confirm him to a lifetime seat on the Supreme Court.

Transgender Rights and Trump

Yesterday the Trump Administration announced that it was withdrawing a “Dear Colleague” letter, prepared by the Department of Justice’s Civil Rights Division and the Department of Education’s Office of Civil Rights (“OCR”) on May 13, 2016.  That letter informed educators that Title IX of the Education Amendments of 1972 requires schools receiving federal funds to provide transgender students access to restrooms that match their gender identity, not their gender at birth.

At least that is what I think the Trump Administration did.  For some reason, information about that decision does not appear on the White House Web site.

It does not appear that the Trump Administration has changed any of the Department of Education’s previous pronouncements about the application of Title IX to transgender students.  That includes the OCR’s 2014 Questions and Answers on Title IX and Sexual Violence, which specifically covers transgender students; or its opinion letter of January 7, 2015, which states that when a “school elects to separate or treat students differently on the basis of sex” with respect to sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams or single-sex classes, “a school generally must treat transgender students consistent with their gender identity.”

The news reports about yesterday’s announcement states that the Administration wants these issues to be handled by the states.  That statement is bizarre.  We are talking about the interpretation of a federal statute.  Any lawyer knows that only the federal courts can authoritatively interpret federal statutes.  Not state governments or state courts.

The federal courts have long held that discrimination against transgender people can constitute sex discrimination.  Those cases are based on the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which holds that an employer commits sex discrimination by taking an adverse action against an employee based on a sexual stereotype.  In that case, the stereotype concerned how aggressively women could, or should, behave in the workplace.  But stereotypes can also include the way that an employee who was assigned a particular gender at birth looks or acts.

Gender stereotyping of transgender persons can violate the Gender Motivated Violence Act, Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000); the Equal Credit Opportunity Act, Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000); Title VII of the Civil Rights Act of 1964, Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); and the Equal Protection Clause of the Fourteenth Amendment, Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (sex discrimination).

Two federal appellate courts have issued rulings on transgender rights under Title IX.  One case, G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), granted deference to the OCR’s opinion letter of Jan. 7, 2015, in deciding that the lower court had used the wrong evidentiary standard in assessing a transgender student’s motion for a preliminary injunction.  Another court, in Dodds v. United States Dept. of Educ., 845 F.3d 217 (6th Cir. 2016), affirmed a lower court’s denial of a stay of a preliminary injunction, in which that court ordered a school district to treat an 11-year-old transgender girl as a girl and to use the girls’ bathroom.

The G.G. case will be heard by the Supreme Court.  Oral arguments are scheduled for March 28.  If the court doesn’t deadlock on a 4-4 vote, that case could provide definitive guidance as to how Title IX should be interpreted.

The Trump Administration’s announcement yesterday appears to be a gift to the religious right, which helped get Mr. Trump elected.  To the extent that it was based on the view that Title IX does not protect transgender students, the Administration has failed to explain whether it also feels that violence against such students violates Title IX, or why the legal principles adopted for other statutes do not apply to Title IX.  Nor did the Administration explain why it believes that forcing children to use a bathroom that does not match their gender identity in any way advances any legitimate educational purpose, or explain how it plans to address the staggeringly high suicide rates among transgender teenagers.

Perhaps the Administration has a good reason for this action.  If so, it should explain it.  And it should explain what it will do to protect the safety and well-being of students, not the prejudices of non-students.

Musings on Employment at Will (Part 1)

This is the first post in what I expect to be an occasional series on the doctrine of employment at will.  At this point in time, I have no idea how many posts I may write on this subject.

Employment at will is the most important concept in employment law that most people do not understand.  Most lawyers in the U.S. are familiar with the concept.  Some laypeople have a general idea that their state (if it’s not Montana) is an “employment at will” state.  But they often do not know what that means, and almost certainly do not know how this legal doctrine originated.

Many laypeople in the U.S. do not understand that they are employed at will.  They believe that their employers must have a good reason to fire them.  If they were employed in almost any other country, that belief would be accurate.  The United States is one of the few countries in the world in which an employer can fire an employee without having to have a reason for that decision.

What is employment at will?  I like to define it as the legal presumption that a person who is employed for an indefinite period of time can be fired for a good reason, a bad reason or no reason at all, as long as it’s not an unlawful reason.

There are several situations in which this legal doctrine does not apply:

  1. Persons who have a contract for employment for a specific term, or length of time.  Not surprisingly in 21st century America, there is a class divide between the few who have such contracts and those who do not.  Highly compensated executives, professional athletes and media employees (e.g., television news anchors) often have such contracts, given their market power.  Such contracts are rare outside those employee groups.
  2. Employees who are covered by a collective bargaining agreement — a contract between a labor union and an employer — generally can be fired only for a good reason.
  3. Public employees often can be fired only for cause.  That generally applies only after the employee has satisfactorily completed a probationary period of employment.  And some government employers, usually local governments, maintain employment at will policies.

Outside those situations, employment at will is the default rule in the United States.  Plaintiffs’ lawyers try to identify claims that could provide relief for their clients.  The most common are statutory claims, such as those based on anti-discrimination laws; contract claims; and tort claims, such as fraud or wrongful discharge.  But employment at will is the background to all of those claims.  It is what many judges feel to be the state of nature, the way they understand the world of employment works.

In reality, employment at will arose from obscure origins, is justified by questionable assumptions, and often leads to unjust results.  Many people in the U.S. accept it because they too believe that that is how the world works.  The fact that employment at will can be used to facilitate sexual harassment, or to punish whistleblowers, or to prevent unionization is viewed as an unfortunate by-product of a rule they believe to be universal.

In fact, that is not how most of the world works. But that will require more posts to explain.

Pregnancy Accommodations

Last week, I wrote a blog post about a new statute, enacted in 2016, which requires Colorado employers to allow employees and ex-employees to inspect and obtain copies of documents in their personnel files.  In this post, I will discuss another 2016 Colorado statute.

That statue, which added a new sec. 24-34-402.3 to the Colorado Anti-Discrimination Act (“CADA“), requires all Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth.  It also provides:

  • Any accommodation must be requested in writing.
  • An accommodation cannot impose an undue hardship on the employer. The courts could and should use the definition of “undue hardship” adopted under CADA and the federal Americans with Disabilities Act (“ADA”).
  • An employer cannot take an adverse employment action, or deny employment opportunities, to an employee who has requested a reasonable accommodation or based on the need to make a reasonable accommodation.
  • An employer cannot require an employee to accept an accommodation that the employee has not requested or that is not necessary for the employee to perform the essential functions of the job.
  • An employer cannot require that the employee take leave if the employer can make another reasonable accommodation.

The definitions make it clear that this new statute uses retaliation and ADA concepts.  The definition of “adverse action” is based on the “materially adverse” concept that the Supreme Court has applied to retaliation cases. The definition of “reasonable accommodation” is also broad, and specifically includes “more frequent or longer break periods” and “more frequent restroom, food, and water breaks.”  The term “undue hardship” is defined to mean “significant difficulty or expense to the employer.”  That definition includes factors that may be considered in determining whether an accommodation would impose an undue hardship.

An employer cannot be required to do any of the following:

  • Hire new employees that the employer otherwise would not have hired;
  • Discharge an employee, transfer an employee who has less seniority, or promote an unqualified employee;
  • Create a new position, including a light-duty position, “unless a light duty position would be provided for another equivalent employee”; or
  • Provide paid leave beyond that which is provided to similar situated employees.

This new statute is far from perfect.  It includes many compromises that were necessary to get it passed.  Still, it represents a major legal advance for pregnant employees in Colorado.  It requires employers to provide accommodations, including leave time, that frequently have been denied to pregnant employees.  While it is not certain that the courts will interpret this statute correctly, its enactment should make it easier for pregnant employee and new mothers to continue to work.  In short, it made Colorado a more family-friendly state, without imposing significant hardships on employers.



Getting a Copy of Your Personnel File

One relatively recent change in Colorado employment law is a personnel file access law enacted by the Colorado General Assembly in 2016.  That law became effective on Jan. 1, 2017.

This law added a new section 8-2-129 to the Colorado Revised Statutes.  Some highlights of this new law are:

  • It covers most employees and employers in Colorado, OTHER THAN those covered by the Colorado Open Records Act.  That exemption covers public employees.  The new statute applies to all non-exempted private employers, regardless of the number of employees who work for an employer.
  • It does not cover any financial institution chartered and supervised under state or federal law, including banks, trust companies, savings institutions and credit unions.
  • Its definition of the term “personnel file” is broad.  That term includes all personnel records “that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.”  There are four exceptions:
    • Documents (such as medical or FLMA documents) that federal or state law requires to be kept in a separate file from the personnel file;
    • Documents or records pertaining to previous employers’ confidential reports;
    • An active criminal investigation, active disciplinary investigation by the employer, or active investigation by a regulatory agency; and
    • Any information that identifies any person who made a confidential accusation.
  • There are limits to requests to inspect and copy personnel files.  They are:
    • An employee or ex-employee can request copies of personnel files at least annually; except that an ex-employee can request inspection once, and presumably only once, after termination of employment.
    • The inspection and copying shall occur at the employer’s office.
    • The inspection must be at a time that is convenient to both the employee and employer.
    • The employer can require the inspection to occur in the presence of another person designated by the employer.
    • The employer may require the employee to pay the reasonable costs of duplication of documents.
  • The law does not require an employer to maintain personnel file or any particular documents in a personnel file.  However, those requirements might be imposed by other laws.
  • The law does not create a new cause of action — that is, a right to file a lawsuit to compel compliance or to seek damages for an employer’s failure to comply.

A request to inspect and copy a personnel file should be fairly easy to prepare. According to the statute, it does not have to be on a particular form or in any particular format.  However, nothing in this statute prohibits any employer from requiring that an employee use a particular form.  Inspection and copying should be a relatively simple, straightforward process.

An employer that fails to produce personnel documents under this statute could face judicial and/or jurors’ skepticism if it claims to have “discovered” missing documents later.  Specifically, a judge or jury would be free to conclude that these “recently discovered” documents are fakes, created after the fact to justify an earlier employment action.

Employees, ex-employees and their representatives should use this new statute routinely.  Employees’ lawyers know that it is better to discover a negative document before filing a lawsuit, rather than to learn about it after spending hundreds of hours and many thousands of dollars in litigation.  In some cases, learning what documents are in a person’s personnel file might cause that person not to file a lawsuit.  Early inspection can avoid nasty surprises later.

Colorado and about 19 other states have enacted personnel file access laws.  This new law will help shed a light on employment practices that, until now, too often have occurred in the dark.

Class Action Bans and Protected Concerted Activity (Part IV)

There are very straightforward reasons that labor unions and their members have argued that employees, whether they belong to a labor union or not, engage in protected concerted activity when they attempt to join together in a putative, or proposed, class action or collective action in connection with workplace disputes.

Some of those workplace disputes involve allegations that the employer has violated the Fair Labor Standards Act (“FLSA”) by not paying overtime and/or the minimum wage to employees who should have received those payments.  Or employees might bring a discrimination lawsuit based on conduct that applies to a group of employees.

Class actions or collective actions (the latter includes FLSA and federal age-discrimination claims) can be brought more efficiently, at less expense, than the same claims in multiple lawsuits.  In addition, the employer’s liability exposure is higher in a class or collective action.  Of course, that is why employers want to prevent employees from filing those lawsuits.  But no matter how understandable those employers’ motives may be, that does not justify their efforts to prevent employees from exercising their statutory right to engage in concerted activity for their mutual benefit.

That is why the three cases that the Supreme Court has decided to review are so important.  We do not know whether the employees’ position will win a majority of the Court, or whether a majority will find for the employers, or whether these cases will be affirmed on a 4-4 split vote.

In the meantime, Rep. Goodlatte has introduced HR 985, which has the ostensible purpose to “amend the procedures used in Federal court class actions and multidistrict litigation proceedings to assure fairer, more efficient outcomes for claimants and defendants, and for other purposes.”  The full text of that bill is not available on the Library of Congress Web site.  However, I have seen a draft of that bill.  That draft contains provisions that would limit the plaintiffs who could file class actions, impose burdensome new limits on the distribution of money in class actions, and restrict the amount of attorneys’ fees that could be recovered in class actions, among other things.

The right of the people to join together in class actions is under attack.  Keeping existing rights, and protecting employees from one-sided, unilaterally imposed limits on their ability to join together, will require hard work and pressure on Congress.  We can win this fight, but it won’t be easy.

Class Action Bans and Protected Concerted Activity (Part III)

The principal arguments for the Fifth Circuit’s position that the Federal Arbitration Act (“FAA”) preempts the National Labor Relations Act (“NLRA”) in this area are contained in that court’s earlier decision in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). Those arguments are that a prohibition on class-action waivers would discourage arbitration, contrary to the purpose of the FAA; that the NLRA does not expressly state that it overrules the FAA; and that modern class action practice began in 1966, more than 30 years after Congress enacted the NLRA.

That analysis ignores the fact that protection of employees’ right to engage in concerted activity is at the very heart of the NLRA.  The specific prohibitions in section 8(a) of the NLRA, 29 USC sec. 158(a), are based on the right to engage in concerted activity set forth in section 7 of the Act, 29 USC sec. 157.  The specific forum in which these employees want to engage in that concerted activity is different from the workplace settings specifically considered when Congress enacted the NLRA in 1935.  But the fact that the current struggles occur in a legal setting, rather than on the picket line, and use motions and briefs, not strikes, should make no difference.

The issue of class actions, in contrast, is peripheral to the FAA.  Many arbitration cases right now are class arbitrations.  A class arbitration takes more time and is procedurally more complex than an individual arbitration.  But a class arbitration for, say, 50 employees is more efficient than 50 individual arbitration cases.

The fact that the the text of the NLRA does not contain an explicit override of the FAA should make no difference.  Congress can be forgiven for not including any such provision in the NLRA, since the FAA states that it does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  9 USC sec. 1.  It is likely that Congress did not think the NLRA conflicted with a statute that said it didn’t apply to these contracts of employment.

In addition, labor unions and employers have long used arbitration as a means of resolving disputes under collective bargaining agreements.  However, those arbitration cases can involve what essentially are class claims, such as a dispute over an employer’s alleged failure to pay contractual wages to tens, or hundreds, or thousands of union member-employees.  It is disingenuous to claim that an employer can prohibit employees from filing a class arbitration, even while it participates in class arbitrations filed by those same employees’ labor union.

The fact that Rule 23 of the Federal Rules of Civil Procedure, which sets forth the procedures for class actions, did not contain those procedures until 1966 should make no difference.  That would be like arguing that the NLRA cannot prohibit an employer from forbidding its employees to discuss workplace issues via e-mail, since e-mail did not exist in 1935.  The specific method of concerted activity might be new, but the protections for concerted activity have been central to labor law for more than 80 years.

A fair reading of these two statutes should support the NLRB’s decisions in these cases.  However, it is not clear that such a fair reading will receive the approval of a majority of the current eight-justice Supreme Court.  And it is not clear just how any new Justice on that Court, whether it is Judge Neil Gorsuch or anyone else, would rule in these three cases.

Why is this important?  Tune in for Part IV.

Class Action Bans and Protected Concerted Activity (Part II)

What does the National Labor Relations Board (“NLRB or “the Board”) have to do with bans on class actions, created through agreements that some employers have imposed unilaterally on their employees?  The answer is quite a lot.

Section 7 of the National Labor Relations Act (“NLRA”), 29 U.S.C. sec. 157, prohibits employers from interfering with, coercing or restraining their employees from engaging in “concerted activities for the purpose of … mutual aid or protection.”  Those protections are not limited to just unionized employees or to employees’ activities in the workplace.  In a series of cases, federal appeals courts have held that sec. 7 also grants employees the right to band together to file a lawsuit to achieve more favorable terms or conditions of employment.

The NLRB decided, during the Obama Administration, that class action bans — which require covered employees to file employment-related lawsuits individually, rather than filing cases with multiple plaintiffs or  class or collective actions — violate sec. 7 of the NLRA.  The Supreme Court has decided to hear three cases that raise that issue.  Those cases are NLRB v. Murphy Oil USA, Inc.; Epic Systems Corp. v. Lewis; and Ernst & Young LLP v. Morris.  The appeals court decisions in those cases are split.  The Seventh and Ninth Circuits upheld the Board’s position in the Epic Systems and Ernst & Young cases, while the Fifth Circuit ruled for the employer in the Murphy Oil case.

The Murphy Oil decision doesn’t contest the logic that a ban on class actions interferes with employees’ right to engage in concerted activity.  Instead, its decision is based mainly on those judges’ conclusion that the NLRA is not different in kind from other statutes, such as the Age Discrimination in Employment Act at issue in Gilmer, “that that have been found to give way to requirements of arbitration.”  That decision viewed the right to file a class action, or the similar procedure of a “collective action” in wage/hour or age discrimination cases, is just a “procedural device,” not a substantive right.

The Supreme Court granted certiorari — that is, it decided to review — these three cases on Jan. 13, 2017.  Even if Judge Gorsuch is confirmed as a Supreme Court justice, it is not clear whether he would be able to participate in the oral argument and in the decision in these cases.  In the next part of this multi-part post, I will discuss the reasons why I believe that the Court should affirm the NLRB’s decisions in these cases.