VOL. 112 | NO. 23 | Thursday, February 12, 1998
A look back A look ahead
A look back A look ahead
By JEFF WEINTRAUB
Special to The Daily News
A strong economy led the headlines for 1997, with low inflation and a tight labor market. The UPS strike and huge settlements, such as those against Home Depot and Smith-Barney, were in the news in 1997.
There were few major legislative changes in employment and labor law. However, most courts continued to interpret federal discrimination laws, particularly the Americans with Disabilities Act, in a relatively conservative fashion.
A few critical questions were answered in 1997, but many more were raised and appear to be prime for resolution in 1998. This column will highlight some of the important trends of 1997 and forecast some of the impact issues that lie on the horizon in 1998.
In 1997, the federal courts tackled several important issues. In Robinson v. Shell Oil Co., the Supreme Court held that "former" employees can sue for retaliation under Title VII.
Another hot topic that has been volleyed around in the circuits is the issue of individual liability under Title VII. Currently most circuits, including ours, have held that a supervisor may not be held individually liable under Title VII.
The circuits now are dealing with the issue of whether after-acquired evidence can be used in determining whether an employee is suffering from a "serious health condition" under the Family and Medical Leave Act. In Bauer v. Varity Dayton-Walther Corp., our circuit recently answered this question in the affirmative.
In 1998, the Supreme Court is set to decide a number of important issues.
In Oncale v. Sundowner Offshore Services, the court will resolve a split in the circuits over whether "hostile environment" same-sex harassment is covered under Title VII.
The split in the circuits mainly revolves around two issues: whether Title VII covers same-sex harassment at all, and, if so, in what form, i.e., quid pro quo (soliciting sex in return for something else) or pure "hostile environment." We believe the court will answer both questions in the affirmative.
In Oubre v. Entergy Operations, the court will decide whether the common-law "tenderback" rule applies to Age Discrimination in Employment Act waivers that are alleged by a plaintiff to be invalid. The tenderback rule is an equitable doctrine that acts to bar age-bias claims by employees who fail to return severance pay or any other benefit from the "alleged" invalid waiver agreement.
The court also will hear a challenge to the standards for employers in determining whether a union has lost majority support of the unit employees.
The National Labor Relations Board
The board begins the new year with a full complement of five members for the first time since August 1995. In November, the Senate confirmed President Clintons four nominations to the NLRB to join chairman William B. Gould IV: Sarah M. Fox, J. Robert Brame III, Peter J. Hurtgen and William B. Liebman.
General counsel Fred Feinsteins four-year term is scheduled to end in March, along with the term of Gould. Look for changes in these positions this year given the hostility of Congress toward the current NLRB leadership.
As expected, the board continued its pro-labor rulings in 1997 when applying the Labor Act to modern work situations.
For example, the board in Timekeeping Systems Inc. held that sending e-mail messages about working conditions is protected activity under the Act.
In Technology Services Solutions, the board required the employer to provide the names and addresses of bargaining unit employees to the union prior to the ordering of an election the boards normal rule is seven days after the direction of an election where the union allegedly had no reasonable alternative means to communicate with the employees.
Look for the board to issue a decision clarifying the status of temporary agency employees in representation elections in early 1998.
1997 saw an increase in union activity, with about 3,075 total elections held by the board, up from 2,792 in 1996. Moreover, unions won 50.4 percent of elections, as opposed to 47.3 percent in 1996. We expect to see increased union activity in 1998 based on the AFL-CIOs commitment of resources to organizing and the tight labor market.
The Equal Employment Opportunity Commission
One of the major stories of 1997 was the resignation of chairman Gilbert F. Casellas.
In his resignation letter to President Clinton, he said one of his proudest accomplishments was "resolving more cases, in shorter periods, for higher monetary benefits, with the smallest staff in 20 years." Further the 70,000 pending cases "pale in comparison" to the more than 112,000 cases pending several years ago.
The EEOC continues to promulgate enforcement guidelines that advocate the expansive construction of current discrimination laws, such as the February 1997 guidelines that contend receiving Social Security benefits for total disability does not automatically preclude the employee from asserting an ADA claim.
Unfortunately, total charges filed with the EEOC increased from 77,740 in 1996 to 80,625 in 1997. The biggest increase was in the number of retaliation charges filed. The commission also continues to be active in litigating retaliation and ADA cases. Watch out for the EEOCs use of "testers" in the coming year.
The main new legislation to watch out for in 1998 is the now-effective Federal Credit Reporting Act, which requires employers, as users of consumer reports, to take certain steps before obtaining these reports on applicants or existing employees.
Employers can expect more of everything in the coming year, including more changes, suits and union activity. As baby boomers approach retirement age, look for increased litigation over ERISA issues, especially employer fiduciary duties to plan beneficiaries.
But be not afraid, careful thought and informed decision making are the best prescriptions for avoiding management ills in 1998.
Weintraub is the managing partner with Weintraub, Stock, Bennett, Grisham & Underwood P.C.