The Coronavirus is definitely the most important issue of the day, and so we are devoting the entire newsletter to this subject.  Our firm has issued three Alerts during the week of March 16, 2020 on the above subjects, and this newsletter is intended to consolidate these various Alerts, as well as bring more recent information on the issues as of press time, March 26, 2020. 

One of the stalwarts of the liberal image for protection of workers is the Southern Poverty Law Center (SPLC), the Alabama-based civil rights legal advocacy group.  However, recently its long-standing president was dismissed and there were rumors of discrimination issues.  More recently, in late 2019, an affiliate local union of the Communications Workers of American attempted to become a bargaining representative at SPLC, but SPLC's Board of Directors voted unanimously to proceed with the union vote rather than voluntarily recognize the union.  Union organizers accused SPLC of hiring a "union avoidance" law firm to resist the unionization attempt, but the union won the final vote anyway.  The union claimed that SPLC was acting counter to its traditional values. 

Firing a worker for a "bad attitude" is not necessarily illegal, but strategically it is not a strong legal reason for a termination.  An example is a recent case in which a transgender employee claimed she was discharged for retaliation for her continued complaints to management about discrimination, that included being called the wrong name or pronoun.  The fact that she was terminated shortly after her complaints, called temporal proximity, did not necessarily prove the causation as being illegal, but combining that with the claim she was told she was being discharged because of her "bad attitude," caused a federal district court to deny a motion to dismiss the complaint.

One thing that made the use of the "bad attitude" reason for termination particularly suspicious, is that the plaintiff had been complaining of discrimination, and the court concluded that her "bad attitude" might relate to her discrimination complaints.  The court also discussed the length of time between her complaints and her termination, citing cases indicating that a lapse of two months and two weeks between the protected activity and the adverse action is sufficiently long so as to weaken significantly the inference of causation.   Milo v. Cybercore Techs., LLC, 2020 B.L. 1137, D. Md., 1/13/20.    

The Genetic Information Non-Discrimination Act (GINA) has been around since 2008, and is one of the many federal anti-discrimination laws.  It is most notable in that more than 10 years the law has been in effect, there has not been a single successful lawsuit alleging discrimination by an employer using genetic information.  Only 12 GINA cases have been filed by the EEOC in its history.

Some say this lack of successful litigation shows the success, not the failure, of this federal law.  That is, it is likely to have worked effectively as a type of privacy law.  The law makes it illegal for employers to access employees' private genetic information, in both health insurance and employment.  As applied to employment, Title II of the law specifically outlaws businesses from requesting or obtaining a worker's genetic test results, the genetic test results of a worker's family members, or a worker's family medical history.  While workers can voluntarily turn over genetic information in the context of wellness plans, employers are still prohibited from taking adverse employment actions against the worker based on that information.  The cases that are brought under GINA generally relate to employers receiving workers' family medical histories.  The EEOC sued Dollar General Stores in 2017 in this situation, and another case involving FIS Management Services involved a worker claiming his employer fired him because of biometric test results, administered as part of a voluntary employee wellness program, which showed his elevated cancer risk.

Another reason GINA is rarely used, at least in successful litigation, is that already-existing medical conditions would fall under the Americans with Disabilities Act (ADA).  The ADA claims can be broader, partly because a plaintiff can sue whom is "regarded as" being disabled. 

The share of American workers in labor unions fell to a record low last year, according to a January 22, 2020 announcement from the U.S. Department of Labor.  The number of union members fell by 170,000 in 2019, reducing the share of the workforce in labor unions to 10.3%, the lowest portion on record since the data has been kept in the present format since 1983.  In 2018, unions represented about 10.5% of American workers, including both the public and the private sectors.  Union membership in the private sector also fell, from 6.4% to 6.2% in 2018, also a record low.  In 1983, the first year of comparable government data, union membership in the private sector was over 20%.  The declines in union membership are said to reflect both the decline of organized labor, and also the reduction in employment in more unionized industries.    

As a matter of fact, union membership has been on a steady decline each year over the past 36 years, with only a single year where union membership made gains during a time the economy was shedding jobs.

It is interesting that more than half of all union members in the U.S. live in just seven states.  New York workers have the highest union membership right after Hawaii, about 21%.  It is further interesting that Michigan had a larger drop in union membership than the U.S. as a whole, with its union membership falling by a percentage point during 2019.  This is the same state where there was a contentious and lengthy strike at General Motors last year. 

The various labor and employment agencies of the federal government, including the NLRB, the EEOC, and the U.S. Department of Labor, have all proposed regulations or other guidance limiting the use of the "joint employment" concept.  Currently, there is a hodgepodge of various standards on who is a joint employer, but the one commonality is that the analysis generally addresses how much control a potential joint employer exerts, or has the right to exert, over the workers of the other entity.  Many of the "poster boy" examples of the issue pertain to franchisors and those companies that rely on contract labor and staffing agencies.  The famous McDonald's case is perhaps the most publicized, in which the NLRB contended that McDonald's and its franchisees were joint employers, while McDonald's contended that it was a separate and independent entity.  That case was recently settled. 

The Protecting the Right to Organize Act (H.R. 2474) on February 6, 2020 passed the U.S. House of Representatives by a vote of 224-194.  Five Republicans voted for the bill and seven Democrats opposed it.  It has been called the most pro-union legislation since the Wagner Act was passed in 1935.   It is so pro-union, that many business interests have taken the legislation lightly, apparently feeling it could never pass.  It has passed, at least in the House.  There is a similar bill pending in the Senate (S. 1306), but Senator McConnell is unlikely to give it a floor vote. 

The efforts of the Equal Employment Opportunity Commission (EEOC) to collect information on race and gender pay data are finally over.  The Trump Administration had blocked the collection of the race and gender pay data in 2017, but a federal district court judge in the District of Columbia ordered the Obama-era pay reporting requirement to continue.  The judge's order is still being appealed, but in the meantime the judge has finally deemed the collection complete, with about 89% of all eligible employers having turned over the pay data. 

No announcement has been made as to how the pay data already collected will be used, and there are no current plans to do race and gender pay data collection in this manner in the future.  However, the matter is still being considered from a regulatory standpoint and conditions could change, of course, with a different administration. 

It seems to be a trend not only in the U.S., but around the world, for there to be a flurry of protests and walk-outs.  Strike activity in the U.S., for example, is at the highest level in several years, after many years of extremely low levels of such activities.  But now we seem to have a similar trend in often spontaneous walk-outs in even non-union plants in the U.S.

First, a brief review of the legal rules.  A concerted walk-out, even in a non-union facility, is a protected, concerted activity.  Therefore, employees may not be terminated or even disciplined for engaging in such activities.  There are three exceptions, however, in special circumstances. 

For employers concerned about union organizing campaigns, the so-called "quickie" union election rules promulgated in 2014 were among the most dangerous things ever to hit labor law - only surpassed by the "card-check" proposals.  Unions try to keep their campaigns secret for as long as possible, so they can develop a solid majority for unionization without the employer having an opportunity to respond.  Unions therefore time their filing of election petitions so as to be filed when there is maximum union strength.  Unions know that in their counter-union campaigns, management will explain the disadvantages of unionization, and therefore unions hope to hold onto their majority in the time period between the filing of the election petition and the holding of the secret ballot election.  The longer the campaign period for the election, the more likely it is that the once-majority support for the union will dissipate.