Legal Watch - March 27, 2014
March 27, 2014
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
Adjunct faculty at Lesley University in Boston overwhelmingly voted in favor of representation by the Service Employees International Union (SEIU) in an NLRB supervised election occurring in late February. The NLRB reported that of the 700+ faculty members eligible to vote, the count was 359 in favor of union representation and 67 against. Under NLRB rules, it is not necessary to obtain a majority of those eligible to vote to determine the outcome; the determination on whether or not to unionize is instead made by a majority of those voting.
The Lesley University result was the latest in an effort called Adjunct Action, a SEIU-sponsored program to organize adjuncts at 20 Boston-area colleges. Adjuncts at Tufts University recently voted in favor of unionization in a similar NLRB-supervised election, as adjuncts at Bentley University turned down union representation by two votes (100 to 98). This recent activity is part of a nationwide effort by the SEIU to organize adjunct faculty at institutions in the Los Angeles, Seattle and Washington, D.C., metropolitan areas.
The issues in each organizing campaign seem to be pay and benefits, comparability to full-time faculty and job security. The SEIU says that adjuncts often claim they are paid half of what full time-faculty are paid per credit hour, routinely have no medical or other benefits, and are worried from year to year as to whether they will be employed.
In another labor development, 1,100 unionized faculty members at the University of Illinois at Chicago went on strike for two days to protest the slow pace of contract negotiations with the university. United Faculty Local 6456 claimed that its members shut down much of the teaching at the UIC campus. The union, which represents 720 tenured faculty members and 380 non-tenured educators at UIC, was certified to represent the unit in July 2012 by the Illinois Educational Labor Relations Board. The United Faculty Local is affiliated with the Illinois Federation of Teachers and the American Association of University Professors.
The union claimed that it chose to engage in the short strike to emphasize the bargaining unit’s frustration with the negotiations without undermining the university’s educational goals and without being too disruptive to students. Wages and the administration of possible wage increases appear to be the major sticking point in the negotiations.
The number of new lawsuits filed by the EEOC in fiscal 2012 and 2013 dropped to 122 and 131, respectively. This constitutes a major drop from the lawsuits the EEOC filed during the five- year period from 2007 to 2011, when the number of lawsuits filed ranged from 250 to 336 a year. The EEOC’s focus on systemic cases has brought the annual number down, but has resulted in record recoveries for victims of discrimination.
In February, the Commission reported that it obtained over $372 million in monetary recoveries in fiscal 2013 for victims of discrimination. This total recovery constitutes the highest annual recovery the EEOC has ever obtained. It reported that for the fourth year in a row it has resolved more discrimination charges than it has received, thus further reducing its backlog.
In terms of discrimination charges filed in 2013, the most frequent involved race discrimination at 35.3 percent, followed by sex discrimination charges, including harassment and pregnancy discrimination, at 29.5 percent, and disability claims at 27.7 percent. The remaining 7.5 percent of the charges filed were age, religion and other protected classes.
A federal district court recently denied a school district’s motion for summary judgment, holding that an African American school teacher in Mississippi who was selected for a reduction in force and contract non-renewal stated a jury question of fact upon allegations that he was given the ultimatum to resign to avoid the “red flag” of contract non-renewal, which could hurt his reemployment opportunities (Lawson v. Hinds County School District (SD Miss., No. 3: 12-cv-00698, 2/13/14)).
The judge held that the plaintiff raised a triable constructive discharge case under Title VII, which he held was a fact question to be sent to a jury for determination. The plaintiff alleged that his supervisor offered as the reason for his inclusion in the school district’s RIF that he was a black man and as such he could easily get another job in the school system. His supervisor denied making the statement. The judge ruled that this is a question of fact which must be decided by a jury. The judge also ruled that if the plaintiff’s allegations are credited by a jury, they support an “ultimatum” theory which would be actionable under Title VII as an unlawful constructive discharge, since if the allegations are true, the decision to include the plaintiff in the RIF was motivated by race.
A federal district court recently ruled that a 63-year-old former automotive service manager who was replaced by a younger employee is entitled to double back wages under the Age Discrimination in Employment Act (ADEA) because the employer’s explanation of the reasons for replacing him with a younger employee was “contrived” and unworthy of belief (Williams v. Asbury Auto Group Inc. (ED Ark., No. 4:12-cv-00393, 2/7/14)).
According to the plaintiff’s supervisor, he told the plaintiff that he decided to split the plaintiff’s current duties in half, assigning half of the duties to another employee, and cutting the plaintiff’s salary in half. The employee to whom half of the duties were going to be assigned was significantly younger than the plaintiff. The plaintiff testified that he was told by his supervisor that he was being fired outright and a few days later he was told of the split assignment plan and the cut in salary. He left employment rather than accept a 50 percent salary cut.
The court credited the plaintiff’s testimony because, among other things, it was independently confirmed by another witness (the plaintiff’s wife). The court also concluded that the employer’s explanation was contrived, as it conflicted with the employer’s own business plan and the business plan of the automotive group that the employer was a part of. In addition, the court recognized that at the time of trial (some 30 months after the plaintiff had left the employer), no such spit plan was implemented. When the plaintiff left employment, all of his duties were assumed by one person some 20 years younger. When that individual left the company, it hired yet another service manager in his 30s, almost 30 years younger than the plaintiff, and still did not split the duties.
The court concluded that for an employer to contrive the rationale for an employment decision as a defense to an age discrimination claim under the ADEA constitutes a “willful” violation of the Act and therefore subjects the offending employer to an award of double damages.
The United States Court of Appeals recently affirmed the dismissal of a sexual harassment lawsuit filed against Cook County, Illinois, which resulted from a non-supervisory employee duping a prospective hospital massage therapist applicant into having sex with him in exchange for him hiring her, where he had no authority or power to participate in the job hiring or recruiting process on behalf of the hospital (Wilson v. Cook County (7th Cir., No. 13-1464, 2/10/14)).
The case involved a politically appointed administrative assistant at a county hospital. The employee, who had no power to hire anyone, faked a job interview, an employment application, and an interview of the plaintiff and assured her that in response to engaging in sexual conduct with him he would use his connections to get her a job, despite her lack of qualifications. The plaintiff engaged in sex with the employee and then became suspicious. The plaintiff then called the hospital and found out that there was no massage therapist job available, at which time she called the police and the employee was arrested, charged and ultimately pleaded guilty to official misconduct and bribery.
The court of appeals affirmed the trial court’s dismissal of the case on the county’s motion for summary judgment. The court held that the plaintiff’s injuries resulted from the employee’s deception and manipulation rather than any authority vested in him by the county. The court also held that while the hospital could have been more diligent in hiring the administrative assistant, the plaintiff’s injuries did not result from the public employer’s “official custom or policy.”