Are They Really Thinking These Things Through? September 19, 2007
Three members of Congress held a press conference on September 18th, 2007 to urge the Department of Homeland Security to rethink its proposed rule on green cards. Recent green cards have expiration dates, green cards issued from 1979 to 1989 do not. The DHS has issued a proposed rule to invalidate all those green cards without expiration dates and require the holders of those green cards to pay $370 to obtain new ones. The problem is, the DHS has no plans of actually informing the green card holders of the change, except through the federal register. This means that people who actually came to the U.S. legally and have spent at least 18 years here, if not almost 30, may find themselves unable to get a new job. However, on the other side, it is unlikely that the DHS will actually inform employers either, so most employers won’t know that the green card without an expiration date is no longer valid. Maybe the DHS should take a deep breath and try to actually think these things through once in a while.
It's Not a Sign, It's Just a Giant Rat, September 17, 2007
The New Jersey Appeals Court affirmed the conviction of an International Brotherhood of Electrical Workers official, Wayne DeAngelo. Evidently, as part of their protest of a construction site using non-union workers, the union displayed a 10-foot tall balloon in the shape of a rat on a public sidewalk. The Lawrence Township ordinance prohibited banners, balloon signs, etc. except in the case of "grand opening signs" or "under new management" or relocation related signs.
DeAngelo argued that the ordinance was preempted by the National Labor Relations Act, violated the First Amendment’s free speech provision, was selectively enforced only against unions and was ambiguous. The court disagreed with all these arguments saying that the dispute was not between the union and management, but the union and the city. The court also found that the ordinance was not ambiguous and even if it was, a police officer ordered the balloon to be taken down and the union put the balloon back up 45 minutes after the officer left the scene.
DeAngelo’s conviction was upheld. He’ll have to pay that $100 fine along with the $30 in court costs because of his giant inflatable rat.
Washington Area Hotel Workers Ratify New Union Contract, September 14, 2007
by Eric Paltell
On September 7, 2007, Washington area hotel workers, represented by UNITE HERE Local 25, ratified a new three year collective bargaining agreement with the Hotel Association of Washington, D.C. The new contract covers 4300 hotel employees at 20 different hotels.
The Agreement was reached more than a week before the expiration of the current contract. The rapid and relatively peaceful negotiations represent a sharp departure from the protracted and contentious negotiations that occurred in 2004.
The contract calls for wage increases, as well as improvements in pensions and long and short term disability benefits. The agreement also provides for the continuation of fully funded family health insurance coverage under a Kaiser health maintenance organization.
Perhaps the most significant part of the agreement is the Hotel Association's willingness to agree to "organizing neutrality." The hotels agreed that in the event a member hotel builds, acquires, buys, or expands an existing hotel in the District of Columbia (or the new Washington Harbor complex in Prince George's County), the hotels will not oppose efforts by Local 25 to organize the workers. The hotels further agreed that the Union can secure representation rights through a card check agreement instead of having an NLRB supervised election.
Organizing neutrality and card checks have become the preferred method for unions to organize workers. This past spring, organized labor tried in vain to get Congress to pass the Employee Free Choice Act, which would have mandated that unions have the right to organize workers without an NLRB supervised secret ballot election. Having been unsuccessful in Congress, unions have returned to the bargaining table, where they try to secure such arrangements from willing employers. We should expect to see more of these neutrality and card check agreements, especially in the hospitality and healthcare industries, in the months to come.
Arizona City Legally Fired Police Officer For Running On-Line Sex Business, September 12, 2007
by Eric Paltell
A federal appeals court ruled that the City of Chandler, Arizona legally fired a police officer who was running an on-line sex business involving his wife and himself. In the decision, Dible v. Chandler, (9th Cir. 9/5/07), the court held that the police officer had no First Amendment right to run such an offensive business during his off duty time.
The case arose when Police Officer Ronald Dible set up a website featuring sexually explicit photographs and videos of his wife in 2000. The website featured his wife in various sexual poses and activities with Dible, other women, and inanimate objects. He even began holding "bar meets" where fans of the website could meet Officer Dible and his wife in person and have pictures taken with the couple.
When rumors of the on-line sex business and bar meets began to circulate in the Police Department, the City ordered him to shut down the activities. Dible then supplied misleading information about the business to the City, and he was ultimately fired.
The United States Court of Appeals for the Ninth Circuit affirmed the trial court decision which found that the City legally fired Dible. The court ruled that, although public employees may have First Amendment rights, not all speech is protected. As stated by the court, "we have not yet abandoned our social codes to the point that a City can be sanctioned for violating a police officer's First Amendment rights when he causes disrespect of the police department and its members by performing in an purveying pictures of his and his wife's sexually explicit activities over the internet."
The court's decision in the Dible case shows that, even in the employee- friendly 9th Circuit (which includes California), there are boundaries on what public servants can do on their off duty time. Employers should take heart that the courts will support termination when public employees engage in off duty activity which so offends the public that it undermines the integrity of the department.
Maryland Court Rules Terminating Employees Entitled To Unpaid Leave Time, September 11, 2007
by Eric Paltell
In an unpublished August 2007 decision, the Maryland Court of Special Appeals ruled that terminating employees are entitled to be paid for accrued but unused vacation, even though they had not given the two weeks advance notice of resignation required by their employee handbook. The Court’s decision in Catapult Technology Ltd. v. Wolfe is a dramatic departure from established Maryland law. If the case is not reversed on appeal, Maryland employers may need to revisit their policies regarding vacation accrual and pay outs.
The case arose when Catapult, a government contractor in Montgomery County, learned that it was going to lose its contract with the United States Department of Transportation. When Catapult could not assure its employees that it would have jobs for them, the employees accepted positions with the successor contractor. As a result, the employees gave Catapult notice of their intent to resign, effective immediately.
Under Catapult’s employee handbook, employees were required to give two weeks notice of their intent to resign. According to the handbook, “if the employee terminates their employment without first providing at least two weeks notice in writing, that employee forfeits any right to any universal leave that may have been accrued while employed by the company.” Relying on the handbook, Catapult refused to pay accrued but unused “universal leave” to the resigning employees.
The employees brought suit in Montgomery County Circuit Court, seeking payment for their accrued but unused leave. The court ruled in their favor, finding that leave was accrued based upon the numbers of hours the employees worked, and, once accrued, it was a vested benefit similar to wages that could not be withheld at termination. The Court of Special Appeals affirmed the trial court, relying upon the Court of Appeals’ decision in Medex v. McCabe, 372 Md. 28 (2002), which held that employees are entitled to incentive and commission payments “when the employee does everything required to earn the wages.” In the Catapult case, the Court of Special Appeals reasoned that leave is given “in remuneration” for employees’ work and that, once the hours are worked, the employee is entitled to be paid whatever leave they earned for those hours of work.
On its face, the Catapult decision is very troubling. Two federal courts had previously ruled that an employer could have a policy which requires employees to give advance notice of resignation as a condition to receiving accrued but unused vacation pay at termination. Additionally, the Maryland Department of Labor had even stated on its website that an employer could legally have such a policy in Maryland. Even though it is unpublished, the Catapult decision will give employees ammunition to challenge the failure to be paid all accrued but unused vacation pay at termination. Moreover, creative lawyers may argue that the Catapult case means that employers cannot have a “use it or lose it” vacation policy, where unused leave is not carried over from year to year.
However, the picture may not be as bleak as it initially appears for Maryland employers. The decision is an unpublished decision, meaning it is not binding authority. Indeed, the fact that the Court of Special Appeals chose not to publish the decision is encouraging, and may be an indication that the Court is not yet ready to make a wholesale change in Maryland law. We should also keep in mind that the facts of the Catapult case were bad, especially since the employer allegedly misled the employees into thinking they would not lose their jobs and also threatened the employees with violating the company’s non-compete agreement if they quit to work for the successor contractor. Lawyers often say that “bad facts make bad law,” and that may just be the case here. Although Maryland employers need to recognize that they may now be liable to pay out accrued vacation balances at termination, we should wait to see whether the Court of Appeals agrees to hear the case before making any changes in our policies.
Watch How You Treat People AFTER You Fire Them, September 5, 2007
The highest state court in Massachusetts has reinstated an award to five black female health care workers who were laid off without notice and monitored as they collected their belongings. A white male employee was given advance notice and not monitored. The hospital contended that the white male employee had different duties, which made it unnecessary to lay him off without notice or to watch him closely as he prepared to leave.
The court found the reasons a pretext, especially since none of the five workers had ever exhibited any behavior that could lead the hospital to believe they would react badly to the layoff. A lower appeals court had sided with the employer, but the Supreme Judicial Court agreed with the trial court's judgment in favor of the employees. Trustees of Health & Hosps. of the City of Boston Inc. v. Massachusetts Comm'n Against Discrimination, No. SJC 09811 (SJ Mass., August 8, 2007).
The court might have ruled differently if all employees had been laid off and monitored the same way. The lesson here is that there must be a compelling reason to treat employees differently, especially where employee dignity is at stake.
Union Membership Up for Immigrants, Down for Native-Born Workers, September 4, 2007
The Migration Policy Institute, www.migrationinformation.com, has issued a report stating that since 1996, there has been a 30% increase in the number of immigrant workers belonging to unions. During this same time period, there has been a 9% union membership decline among native-born workers.
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