Dealing with Shifting Labor Employment Sands

Changes in regulations and tighter interpretations of existing regulations engaged participants in 14th annual Labor and Employment Roundtable, hosted by the Cornell Institute for Hospitality Labor and Employment Relations. They also reviewed changes in union organizing rules. Two Supreme Court decisions dealt with the challenging application of accommodating workers’ health and religious needs, while a new ruling by the National Labor Relations Board calls into question the supposedly arm’s length relationship of employee leasing firms and their clients, as well as franchisors and franchisees. The NLRB also has shortened the campaign time for union elections. In one Supreme Court case, Young v. United Parcel Services, Inc., the Court pointed to a simple principle when employers implement policies for those with illness or medical conditions. Policies must be consistent with regard to how on-job and off-job health issues are treated, and the company’s policy must not be driven by economic considerations. That is, the Court stated that an employer’s denial of a light-duty assignment for an employee could not be based on cost or convenience. The case relating to religious accommodation also involved an economic hinge. In an earlier case, the Court had held that religious accommodations are limited to that which would have no more than a de minimus cost on the employer. In this case, EEOC v. Abercrombie & Fitch Stores Inc., Abercrombie had declined to hire a woman wearing a headscarf on the assumption that she would need a religious accommodation. The Court frowned on the idea that an employer would take religious accommodations into account when deciding whether to hire a person. The franchising industry is attempting to make sense of the NLRB ruling regarding joint employment, in which the board ruled that franchisors that maintain some kind of control over their franchisees’ employees should be considered joint employers of those employees. This is a complicated matter, and the situation is still in flux. Finally, with regard to the telescoped union campaign ruling, these are supposed to benefit the unions. So far, however, there’s no indication that the change has affected the overall outcome of union election campaigns.

Experimental Evidence that Retaliation Claims Are Unlike Other Employment Discrimination Claims

The type of discrimination claim that strikes fear in the hearts of all employers is the dreaded retaliation claim. While employers contend, and plaintiffs admit, that retaliation is different from other discrimination complaints, employee advocates have put forth legislation that would equalize retaliation with the other types of discrimination. This bill, Protecting Older Workers against Discrimination Act (POWADA), would expand the so-called mixed-motive jury instruction to age, and disability, as well as retaliation. Moreover, it would allow plaintiffs, not judges, to decide which types of instruction the jury would receive. In this article, the authors argue that retaliation claims should not receive the same treatment as other discrimination claims (including age and disability), because it’s easy for juries to believe that retaliation is a factor, regardless of other facts. Once a fact-finding jury checks the box to indicate that an employer’s motive might include retaliation, the employer will likely have to pay fees and costs, at minimum, regardless of the claim’s final resolution.