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Employer was required by National Labor Relations Act (NLRA) to provide union with separation agreement negotiated without union’s knowledge.
The union representing a legal services employee had the right to obtain a copy of the separation and severance agreement she entered into with her employer that had been negotiated without union involvement, the National Labor Relations Board (NLRB) ruled, overturning a decision of the administrative law judge (ALJ) who first heard the case.
The employee had resigned her job after a disagreement, and her employer offered to pay her a severance amount in exchange for her signing a separation agreement. The agreement stated that the employee had resigned and had been paid all her owed salary and leave pay. She also received an additional lump sum payment in exchange for waiving any tort claims rising from her employment, including various statutory and common-law rights.
The union sought to obtain a copy of the separation agreement because of its suspicion that the employer had unlawfully negotiated with a union-represented employee without first informing the union. Although the ALJ agreed with the employer that its discussion of the separation agreement had not included a negotiation of terms and conditions of employment that were covered by the collective bargaining agreement (CBA), the NLRB disagreed. It found that the separation agreement did in fact cover mandatory subjects of bargaining that were covered by the CBA, and that the employer thus had a duty to provide the agreement to the union so it could adequately represent the employee under the terms of the CBA. The NLRB ordered the employer to provide the union with a copy of the agreement immediately.
The NLRA puts certain limits on the ways that employers interact with employees who are represented by a union. Even though employers have a lot of control over their workforce, they usually cannot make decisions that affect employees’ terms and conditions of employment without first negotiating with the union.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Legal Servs. of N. Cal., 352 NLRB No. 66 (May 16, 2008).]
Without violating state antidiscrimination law or public policy, employer may terminate employee for using medical marijuana.
Although the state of California has a statute known as the Compassionate Use Act, which allows doctors to prescribe marijuana to patients for medicinal purposes, an employer did not violate the law for terminating an employee for using the drug, even if it is solely for medical purposes.
In this case, the plaintiff’s doctor had prescribed him marijuana for chronic back pain. Shortly after taking a new job, the plaintiff was fired, because he had a positive drug test. He sued for wrongful termination, arguing that, because his use of marijuana was legal under California law, he could not be terminated.
The court disagreed. In finding that his employer neither wrongfully terminated him in violation of public policy nor violated the state’s Fair Employment and Housing Act (FEHA), the court explained that because marijuana use remained unlawful under federal law, no state law could completely legalize it. Further, the employer’s actions did not bar the plaintiff from obtaining the drug; it just prevented him from working for the company. FEHA did not require the employer to accommodate the use of illegal drugs, no matter what the purpose.
Although this case concerns California law, it is a good example of the interplay and conflicts that can arise between state and federal laws in any jurisdiction. As the court pointed out, there is no federal right to use marijuana, and the right to use it in California is fairly limited. The narrow law cannot be used to create extra-employment rights, such as the right not to be terminated.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Ross v. RagingWire Telecomm. Inc., 174 P.3d 2000 (Cal. 2008).]
Employer’s arbitration agreement form not binding on employee who only signed it as last resort.
A grocery story chain could not force an employee to arbitrate his complaints of race discrimination even though he signed a form purporting to agree to binding arbitration, a California court recently ruled. Although federal and state policy favors the enforcement of arbitration agreements, regular contract rules still apply to the agreement to arbitrate. In this case, no such agreement was formed.
Following an oral complaint of discrimination, the employee was given a dispute resolution form, on which he could submit his version of his dispute. After making several complaints, the employee eventually did complete the form, which stated on the bottom of the second page that he was agreeing to a day of voluntary mediation as well as binding arbitration of his dispute if it was not resolved through informal means. The court refused to uphold the agreement to arbitrate for several reasons. First, the court held that nothing in the dispute agreement indicated that it was a contract; instead, it appeared to be a form designed to allow employees to submit their grievances to the company. Indeed, the employee testified that he was told he needed to submit the form to have the company even consider his complaint. No one told him that he would also be agreeing to binding arbitration. Further, the employee had tried on several occasions to complain to the company, but his complaints were ignored until he signed and submitted the form. Therefore, the employer’s argument that the employee was not required to agree to arbitration and could just use more informal channels to make his complaints, carried little weight. Finally, the court noted that the dispute resolution policy was not contained in an employment agreement where one might expect it, and the context of the form did not indicate that it was a binding contract.
This case is a good example of what an employer should not do when trying to enter into a contract for binding arbitration with an employee.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Metters v. Ralphs Grocery Co., 161 Cal. App. 4th 696 (Cal. App. 2008).]
Employee could not maintain retaliation claim under the Family and Medical Leave Act (FMLA) based on his wife’s lawsuit, because he never participated in her case or gave testimony.
A sheriff’s officer whose wife settled her FMLA case against the same employer could not maintain an FLMA retaliation claim, because he never participated in his wife’s case, the Fifth Circuit recently held.
The plaintiff’s wife filed a lawsuit alleging FMLA violations against the sheriff’s office; the case eventually settled prior to trial, and the officer’s wife quit her job. More than a year later, the plaintiff began applying for promotions with the sheriff’s office but was unsuccessful, despite his contention that he was the most qualified candidate. He alleged that his boss “closed off” all discussions about the plaintiff’s advancement.
Soon after discussing his promotion chances with his boss, the plaintiff was transferred to a night-shift position, which caused him to lose certain holiday and overtime pay. He then filed a lawsuit alleging that he was being retaliated against because of his wife’s FMLA claim. The trial court dismissed his claim on the ground that he was not covered by the FMLA’s retaliation provision, and the Court of Appeals affirmed the dismissal. It explained that the retaliation provision only protects individuals who either participated or planned to participate in an FMLA investigation or litigation, such as by giving testimony. In this case, the plaintiff admitted that he tried not to involve himself in his wife’s case while it was occurring; his employer never interviewed or questioned him about the situation. More importantly, the case had been completely settled by the time the alleged retaliation occurred, so there was no way that the plaintiff could have planned to testify on her behalf. In short, there was nothing to link the plaintiff’s allegations of retaliation to his wife’s previous FMLA lawsuit.
This case discusses a less-known aspect of the FMLA. Although it is possible for an employee to suffer retaliation because of support of a coworker’s claim, there must be actual participation in the case, such as through testimony or planned testimony.
-- Paul Freehling, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Elsensohn v. St. Tammany Parish Sheriff’s Office, -- F.3d --, 2008 WL 2315667 (5th Cir. June 6, 2008)].